author:
Justice Blackmun
      Justice Scalia,

text:
    THUNDER BASIN COAL CO. v. REICH, SECRETARY OF LABOR, et al.
    No. 92-896.
    Argued October 5,1993
    Decided January 19, 1994

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ., joined, and in which Scalia and Thomas, JJ., joined except for Parts III-B, IV, and V. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined, post, p. 219.

      Wayne S. Bishop argued the cause for petitioner. With him on the briefs were Charles W. Newcom, Stewart A. Block, and Thomas F. Linn.

      Deputy Solicitor General Wallace argued the cause for respondents. On the brief were Solicitor General Days, Acting Deputy Solicitor General Kneedler, William K. Kelley, Allen H. Feldman, and Nathaniel I. Spiller.

        Timothy M. Biddle and J. Michael Klise filed a brief for the American Mining Congress et al. as amici curiae urging reversal.

        Patrick K. Nakamura, George N. Davies, Robert H. Stropp, Jr., and Mary Lu Jordan filed a brief for the International Union, United Mine Workers of America, as amicus curiae urging affirmance.

   Justice Blackmun

delivered the opinion of the Court.

In this case, we address the question whether the statutory-review scheme in the Federal Mine Safety and Health Amendments Act of 1977, 91 Stat. 1290, as amended, 30 U. S. C. § 801 et seq. (1988 ed. and Supp. IV) (Mine Act or Act), prevents a district court from exercising subject-matter jurisdiction over a pre-enforcement challenge to the Act. We hold that it does.

I

Congress adopted the Mine Act “to protect the health and safety of the Nation’s' coal or other miners.” 30 U. S. C. § 801(g). The Act requires the Secretary of Labor or his representative to conduct periodic, unannounced health and safety inspections of the Nation’s mines. Section § 813(f) provides:

“[A] representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any coal or other mine ... for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine.”

Regulations promulgated under this section define a miners’ representative as “[a]ny person or organization which represents two or more miners at a coal or other mine for the purposes of the Act.” 30 CFR § 40.1(b)(1) (1993).

In addition to exercising these “walk-around” inspection rights under § 813(f), persons designated as representatives of the miners may obtain certain health and safety information and promote health and safety enforcement. Once the mine employees designate one or more persons as their representatives, the employer must post at the mine information regarding these designees. 30 CFR § 40.4.

The Secretary has broad authority to compel immediate compliance with Mine Act provisions through the use of mandatory civil penalties, discretionary daily civil penalties, and other sanctions. Challenges to enforcement are reviewed by the Federal Mine Safety and Health Review Commission, 30 U. S. C. §§815 and 823, which is independent of the Department of Labor, and by the appropriate United States court of appeals, § 816.

II

Petitioner Thunder Basin Coal Company operates a surface coal mine in Wyoming with approximately 500 nonunion employees. In 1990, petitioner’s employees selected two employees of the United Mine Workers of America (UMWA), who were not employees of the mine, to serve as their miners’ representatives pursuant to § 813(f). Petitioner did not post the information regarding the miners’ representatives as required by 30 CFR §40.4, but complained to the Mine Safety and Health Administration (MSHA) that the designation compromised its rights under the National Labor Relations Act (NLRA). App. 31. The MSHA district manager responded with a letter instructing petitioner to post the miners’ representative designations. Id., at 49.

Rather than post the designations and before receiving the MSHA letter, petitioner filed suit in the United States District Court for the District of Wyoming for pre-enforcement injunctive relief. Id., at 6. Petitioner contended that the designation of nonemployee UMWA “representatives” violated the principles of collective-bargaining representation under the NLRA as well as the company’s NLRA rights to exclude union organizers from its property. Id., at 9-10. Petitioner argued then, as it does here, that deprivation of these rights would harm the company irreparably by “giving] the union organizing advantages in terms of access, personal contact and knowledge that would not be available under the labor laws, as well as enhanced credibility flowing from the appearance of government imprimatur.” Reply Brief for Petitioner 14.

Petitioner additionally alleged that requiring it to challenge the MSHA’s interpretation of 30 U. S. C. § 813(f) and 30 CFR pt. 40 through the statutory-review process would violate the Due Process Clause of the Fifth Amendment, since the company would be forced to choose between violating the Act and incurring possible escalating daily penalties, or, on the other hand, complying with the designations and suffering irreparable harm. The District Court enjoined respondents from enforcing 30 CFR pt. 40, finding that petitioner had raised serious questions going to the merits and that it might face irreparable harm.

The Court of Appeals for the Tenth Circuit reversed, holding that the Mine Act’s comprehensive enforcement and administrative-review scheme precluded district court jurisdiction over petitioner’s claims. 969 F. 2d 970 (1992). The court stated:

“[T]he gravamen of Thunder Basin’s case is a dispute over an anticipated citation and penalty____ Operators may not avoid the Mine Act’s administrative review process simply by filing in a district court before actually receiving an anticipated citation, order, or assessment of penalty.” Id., at 975.

To hold otherwise, the court reasoned, “would permit preemptive strikes that could seriously hamper effective enforcement of the Act, disrupting the review scheme Congress intended.” Ibid. The court also concluded that the Mine Act’s review procedures adequately protected petitioner’s due process rights. Ibid.

We granted certiorari on the jurisdictional question, 507 U. S. 971 (1993), to resolve a claimed conflict with the Court of Appeals for the Sixth Circuit. See Southern Ohio Coal Co. v. Donovan, 774 F. 2d 693 (1985), amended, 781 F. 2d 57 (1986).

III

In cases involving delayed judicial review of final agency actions, we shall find that Congress has allocated initial review to an administrative body where such intent is “fairly discernible in the statutory scheme.” Block v. Community Nutrition Institute, 467 U. S. 340, 351 (1984), quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 157 (1970). Whether a statute is intended to preclude initial judicial review is determined from the statute’s language, structure, and purpose, its legislative history, Block, 467 U. S., at 345, and whether the claims can be afforded meaningful review. See, e. g., Board of Governors, FRS v. MCorp Financial, Inc., 502 U. S. 32 (1991); Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U. S. 411 (1965).

A

Applying this analysis to the review scheme before us, we conclude that the Mine Act precludes district court jurisdiction over the pre-enforcement challenge made here. The Act establishes a detailed structure for reviewing violations of “any mandatory health or safety standard, rule, order, or regulation promulgated” under the Act. § 814(a). A mine operator has 30 days to challenge before the Commission any citation issued under the Act, after which time an uncontested order becomes “final” and “not subject to review by any court or agency.” §§ 815(a) and (d). Timely challenges are heard before an administrative law judge (AU), § 823(d)(1), with possible Commission review. Only the Commission has authority actually to impose civil penalties proposed by the Secretary, § 820(i), and the Commission reviews all proposed civil penalties de novo according to six criteria. The Commission may grant temporary relief pending review of most orders, § 815(b)(2), and must expedite review where necessary, § 815(d).

Mine operators may challenge adverse Commission decisions in the appropriate court of appeals, § 816(a)(1), whose jurisdiction “shall be exclusive and its judgment and decree shall be final” except for possible Supreme Court review, ibid. The court of appeals must uphold findings of the Commission that are substantially supported by the record, ibid., but may grant temporary relief pending final determination of most proceedings, § 816(2).

Although the statute establishes that the Commission and the courts of appeals have exclusive jurisdiction over challenges to agency enforcement proceedings, the Act is facially silent with respect to pre-enforcement claims. The structure of the Mine Act, however, demonstrates that Congress intended to preclude challenges such as the present one. The Act’s comprehensive review process does not distinguish between pre-enforcement and postenforcement challenges, but applies to all violations of the Act and its regulations. § 814(a). Contrary to petitioner’s suggestion, Reply Brief for Petitioner 3, actions before the Commission are initiated not by the Secretary but by a mine operator who claims to be aggrieved. See § 815(a). The Act expressly authorizes district court jurisdiction in only two provisions, §§ 818(a) and 820(j), which respectively empower the Secretary to enjoin habitual violations of health and safety standards and to coerce payment of civil penalties. Mine operators enjoy no corresponding right but are to complain to the Commission and then to the court of appeals.

B

The legislative history of the Mine Act confirms this interpretation. At the time of the Act’s passage, at least 1 worker was killed and 66 miners were disabled every working day in the Nation’s mines. See S. Rep. No. 95-181, p. 4 (1977), Legislative History of the Federal Mine Safety and Health Act of 1977 (Committee Print prepared for the Subcommittee on Labor of the Senate Committee on Human Resources), Ser. No. 95-2, p. 592 (1978) (Leg. Hist.). Frequent and tragic mining disasters testified to the ineffectiveness of then-existing enforcement measures. Under existing legislation, civil penalties were not always mandatory and were too low to compel compliance, and enforcement was hobbled by a cumbersome review process.

Congress expressed particular concern that under the previous Coal Act mine operators could contest civil-penalty assessments de novo in federal district court once the administrative review process was complete, thereby “seriously hampering] the collection of civil penalties.” Concluding that “rapid abatement of violations is essential for the protection of miners,” Leg. Hist. 618, Congress accordingly made improved penalties and enforcement measures a primary goal of the Act.

The 1977 Mine Act thus strengthened and streamlined health and safety enforcement requirements. The Act authorized the Secretary to compel payment of penalties and to enjoin habitual health and safety violators in federal district court. See Leg. Hist. 627; 30 U. S. C. §§ 820(j) and 818(a). Assessment of civil penalties was made mandatory for all mines, and Congress expressly eliminated the power of a mine operator to challenge a final penalty assessment de novo in district court. Cf. Whitney Nat. Bank, 379 U. S., at 420 (that “Congress rejected a proposal for a de novo review in the district courts of Board decisions” supports a finding of district court preclusion). We consider the legislative history and these amendments to be persuasive evidence that Congress intended to direct ordinary challenges under the Mine Act to a single review process.

Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), is not to the contrary. In that case, this Court held that statutory review of certain provisions of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended by the Drug Amendments of 1962, 76 Stat. 780, 21 U. S. C. §301 et seq., did not preclude district court jurisdiction over a preenforcement challenge to regulations promulgated under separate provisions of that Act. In so holding, the Court found that the presence of a statutory saving clause, see 387 U. S., at 144, and the statute’s legislative history demonstrated “rather conclusively that the specific review provisions were designed to give an additional remedy and not to cut down more traditional channels of review,” id., at 142. It concluded that Congress’ primary concern in adopting the administrative-review procedures was to supplement review of specific agency determinations over which traditional forms of review might be inadequate. Id., at 142-144. Contrary to petitioner’s contentions, no comparable statutory language or legislative intent is present here. Indeed, as discussed above, the Mine Act’s text and legislative history suggest precisely the opposite. The prospect that federal jurisdiction might thwart effective enforcement of the statute also was less immediate in Abbott Laboratories, since the Abbott petitioners did not attempt to stay enforcement of the challenged regulation pending judicial review, as petitioner did here. Id., at 155-156.

C

We turn to the question whether petitioner’s claims are of the type Congress intended to be reviewed within this statutory structure. This Court previously has upheld district court jurisdiction over claims considered “wholly ‘collateral’” to a statute’s review provisions and outside the agency’s expertise, Heckler v. Ringer, 466 U. S. 602, 618 (1984), discussing Mathews v. Eldridge, 424 U. S. 319 (1976), particularly where a finding of preclusion could foreclose all meaningful judicial review. See Traynor v. Turnage, 485 U. S. 535, 544-545 (1988) (statutory prohibition of all judicial review of Veterans Administration benefits determinations did not preclude jurisdiction over an otherwise unreviewable collateral statutory claim); Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 678-680 (1986); Johnson v. Robison, 415 U. S. 361, 373-374 (1974); Oestereich v. Selective Serv. System Local Bd. No. 11, 393 U. S. 233, 237-238 (1968); Leedom v. Kyne, 358 U. S. 184, 190 (1958) (upholding injunction of agency action where petitioners had “no other means, within their control ... to protect and enforce that right”). In Mathews v. Eldridge, for example, it was held that 42 U. S. C. § 405(g), which requires exhaustion of administrative remedies before the denial of Social Security disability benefits may be challenged in district court, was not intended to bar federal jurisdiction over a due process challenge that was “entirely collateral” to the denial of benefits, 424 U. S., at 330, and where the petitioner had made a colorable showing that full postdeprivation relief could not be obtained, id., at 331.

McNary v. Haitian Refugee Center, Inc., 498 U. S. 479 (1991), similarly held that an alien could bring a due process challenge to Immigration and Naturalization Service amnesty determination procedures, despite an Immigration and Nationality Act provision expressly limiting judicial review of individual amnesty determinations to deportation or exclusion proceedings. See 8 U. S. C. § 1160(e). This Court held that the statutory language did not evidence an intent to preclude broad “pattern and practice” challenges to the program, 498 U. S., at 494, 497, and acknowledged that “if not allowed to pursue their claims in the District Court, respondents would not as a practical matter be able to obtain meaningful judicial review,” id., at 496.

An analogous situation is not presented here. Petitioner pressed two primary claims below: that the UMWA designation under § 813(f) violates the principles of collective bargaining under the NLRA and petitioner’s right “to exclude nonemployee union organizers from [its] property,” Lechmere, Inc. v. NLRB, 502 U. S. 527, 532 (1992), and that adjudication of petitioner’s claims through the statutory-review provisions will violate due process by depriving petitioner of meaningful review. Petitioner’s statutory claims at root require interpretation of the parties’ rights and duties under § 813(f) and 30 CFR pt. 40, and as such arise under the Mine Act and fall squarely within the Commission’s expertise. The Commission, which was established as an independent-review body to “develop a uniform and comprehensive interpretation” of the Mine Act, Hearing on the Nomination of Members of the Federal Mine Safety and Health Review Commission before the Senate Committee on Human Resources, 95th Cong., 2d Sess., 1 (1978), has extensive experience interpreting the walk-around rights and recently addressed the precise NLRA claims presented here. Although the Commission has no particular expertise in construing statutes other than the Mine Act, we conclude that exclusive review before the Commission is appropriate since “agency expertise [could] be brought to bear on” the statutory questions presented here. Whitney Nat. Bank, 379 U. S., at 420.

As for petitioner’s constitutional claim, we agree that “[adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies,” Johnson v. Robison, 415 U. S., at 368, quoting Oestereich v. Selective Serv. System Local Bd. No. 11, 393 U. S., at 242 (Harlan, J., concurring in result); accord, Califano v. Sanders, 430 U. S. 99, 109 (1977). This rule is not mandatory, however, and is perhaps of less consequence where, as here, the reviewing body is not the agency itself but an independent Commission established exclusively to adjudicate Mine Act disputes. See Secretary v. Richardson, 3 F. M. S. H. R. C. 8, 18-20 (1981). The Commission has addressed constitutional questions in previous enforcement proceedings. Even if this were not the case, however, petitioner’s statutory and constitutional claims here can be meaningfully addressed in the Court of Appeals.

We conclude that the Mine Act’s comprehensive enforcement structure, combined with the legislative history’s clear concern with channeling and streamlining the enforcement process, establishes a “fairly discernible” intent to preclude district court review in the present case. See Block v. Community Nutrition Institute, 467 U. S., at 351. Petitioner’s claims are “pre-enforcement” only because the company sued before a citation was issued, and its claims turn on a question of statutory interpretation that can be meaningfully reviewed under the Mine Act. Had petitioner persisted in its refusal to post the designation, the Secretary would have been required to issue a citation and commence enforcement proceedings. See 30 U. S. C. §§ 815(a) and 820 (1988 ed. and Supp. IV). Nothing in the language and structure of the Act or its legislative history suggests that Congress intended to allow mine operators to evade the statutory-review process by enjoining the Secretary from commencing enforcement proceedings, as petitioner sought to do here. To uphold the District Court’s jurisdiction in these circumstances would be inimical to the structure and the purposes of the Mine Act.

IV

Petitioner finally contends, in the alternative, that due process requires district court review because the absence of pre-enforcement declaratory relief before the Commission will subject petitioner to serious and irreparable harm. We need not consider this claim, however, because neither com-. pliance with, nor continued violation of, the statute will subject petitioner to a serious prehearing deprivation.

The record before us contains no evidence that petitioner will be subject to serious harm if it complies with 30 U. S. C. § 813(f) and 30 CFR pt. 40 by posting the designations, and the potential for abuse of the miners’ representative position appears limited. As the district manager of the MSHA stated to petitioner, designation as a miners’ representative does not convey “an uncontrolled access right to the mine property to engage in any activity that the miners’ representative wants.” App. 49. Statutory inspections of petitioner’s mine need occur only twice annually and are conducted with representatives of the Secretary and the operator. Because the miners’ representative cannot receive advance notice of an inspection, the ability of the non-employee UMWA designees to exercise these limited walk-around rights is speculative. ' See Tr. of Oral Arg. 31; Brief for International Union, UMWA, as Amicus Curiae 11, n. 2. Although it is possible that a miners’ representative could abuse his privileges, we agree with the Court of Appeals that petitioner has failed to demonstrate that such abuse, entirely hypothetical on the record before us, cannot be remedied on an individual basis under the Mine Act. See 969 F. 2d, at 976-977, and n. 6; Utah Power & Light Co. v. Secretary of Labor, 897 F. 2d 447, 452 (CA10 1990); Kerr-McGee Coal Corp. v. Secretary, 15 F. M. S. H. R. C. 352, 361-362 (1993).

Nor will petitioner face any serious prehearing deprivation if it refuses to post the designations while challenging the Secretary’s interpretation. Although the Act’s civil penalties unquestionably may become onerous if petitioner chooses not to comply, the Secretary’s penalty assessments become final and payable only after full review by both the Commission and the appropriate court of appeals. 30 U. S. C. §§ 820(i) and 816. A mine operator may request that the Commission expedite its proceedings, § 815(d), and temporary relief of certain orders is available from the Commission and the court of appeals. §§ 815(b)(2) and 816(a)(2). Thus, this case does not present the situation confronted in Ex parte Young, 209 U. S. 123,148 (1908), in which the practical effect of coercive penalties for noncompliance was to foreclose all access to the courts. Nor does this approach a situation in which compliance is sufficiently onerous and coercive penalties sufficiently potent that a constitutionally intolerable choice might be presented.

V

We conclude that the Mine Act’s administrative structure was intended to preclude district court jurisdiction over petitioner’s claims and that those claims can be meaningfully reviewed through that structure consistent with due process. The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Scalia,

with whom Justice Thomas joins, concurring in part and concurring in the judgment.

I join all except Parts III-B, IV, and V of the Court’s opinion. The first of these consists of a discussion of the legislative history of the Federal Mine Safety and Health Amendments Act of 1977,30 U. S. C. § 801 et seq. (1988 ed. and Supp. IV), which is found to “confirfm],” ante, at 209, the Court’s interpretation of the statute. I find that discussion unnecessary to the decision. It serves to maintain the illusion that legislative history is an important factor in this Court’s deciding of cases, as opposed to an omnipresent makeweight for decisions arrived at on other grounds. See Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 617, 621 (1991) (Scalia, J., concurring in judgment).

As to Part V: The only additional analysis introduced in that brief section is the proposition that “the parties’ arguments concerning final agency action, a cause of action, ripeness, and exhaustion” need not be reached “[b]ecause we have resolved this dispute on statutory preclusion grounds.” Ante, at 218, n. 23. That is true enough as to the claims disposed of in Part III, but quite obviously not true as to the constitutional claim disposed of in Part IV, which is rejected not on preclusion grounds but on the merits. The alleged impediments to entertaining that claim must be considered. It suffices here to say that I do not consider them valid.

And finally, as to Part IV: The Court holds that the preclusion of review is constitutional “because neither compliance with, nor continued violation of, the statute will subject petitioner to a serious prehearing deprivation.” Ante, at 216. I presume this means that any such deprivation will be de minimis (since I know of no doctrine which lets stand unconstitutional injury that is more than de minimis but short of some other criterion of gravity). It seems to me, however, that compliance with the inspection regulations will cause petitioner more than de minimis harm (assuming, as we must in evaluating the harm resulting from compliance, that petitioner is correct on the merits of his claims). Compliance will compel the company to allow union officials to enter its premises (and in a position of apparent authority, at that), notwithstanding its common-law right to exclude them, cf. Lechmere, Inc. v. NLRB, 502 U. S. 527, 534-535 (1992). And compliance will provide at least some confidential business information to officers of the union. (The UMWA’s contention, on which the Court relies, that it is “speculative” whether a nonemployee miners’ representative will be able to accompany the walk-arounds means only that such a representative may not always be able to do so. He will surely often be able to do so, since the statute requires that he “be given an opportunity to accompany” the inspector. 30 U. S. C. § 813(f).)

In my view, however, the preclusion of pre-enforcement judicial review is constitutional whether or not compliance produces irreparable harm — at least if a summary penalty does not cause irreparable harm (e. g., if it is a recoverable summary fine) or if judicial review is provided before a penalty for wowcompliance can be imposed. (The latter condition exists here, as it does in most cases, because the penalty for noncompliance can only be imposed in court.) Were it otherwise, the availability of pre-enforcement challenges would have to be the rule rather than the exception, since complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs. Petitioner’s claim is that the imposition of a choice between (1) complying with what the Government says to be the law, and (2) risking potential penalties (without a prior opportunity to challenge the law in district court) denies due process. This is similar to the constitutional challenge brought in the line of cases beginning with Ex parte Young, 209 U. S. 123 (1908), but with one crucial difference. As the Court notes, see ante, at 217-218, petitioner, unlike the plaintiff in Young, had the option of complying and then bringing a judicial challenge. The constitutional defect in Young was that the dilemma of either obeying the law and thereby forgoing any possibility of judicial review, or risking “enormous” and “severe” penalties, effectively cut off all access to the courts. See 209 U. S., at 146-148. That constitutional problem does not exist here, nor does any other of which I am aware. Cf. Bailey v. George, 259 U. S. 16, 19 (1922). I would decide the second constitutional challenge (Part IV) on the simple grounds that the company can obtain judicial review if it complies with the agency’s request, and can obtain presanction judicial review if it does not.

       Underground mines must be inspected at least four times a year, and surface mines must be inspected at least twice annually. 30 U. S. C. § 813(a).

       Miners’ representatives are entitled to receive “a copy of any order, citation, notice, or decision” issued by the Secretary to the mine operator, 30 U. S. C. § 819(b), as well as copies of certain mine health and safety records available to the Secretary regarding employee exposure to toxic or other harmful agents, § 813(c), daily mine inspections, 30 CFR § 77.1713, and plans for mine evacuation, §77.1101, roof control, §75.220, and employee training, §§ 48.3 and 48.23.

       Miners’ representatives, among other things, may inform the Secretary of mine hazards, 30 U. S. C. § 813(g)(2), request immediate additional inspections of the mine when a violation or imminent danger exists, § 813(g)(1), and participate in proceedings before the Federal Mine Safety and Health Review Commission, § 815(d). Representatives may request or challenge certain enforcement actions against a mine operator, §§ 815(d) and 817(e)(1), contest the time an operator is given to abate a Mine Act violation, § 815(d), and initiate proceedings to modify the application of health and safety standards, 30 CFR § 44.3.

       The Secretary must issue a citation and recommend assessment of a civil penalty of up to $50,000 against any mine operator believed to have violated the Act. 30 U. S. C. §§ 814(a), 815(a), and 820(a). If an operator fails to abate the violation within the time allotted, the Secretary may assess additional daily civil penalties of up to $5,000 per day pending abatement. § 820(b). The Secretary’s representative also may issue a “withdrawal order,” directing all individuals to withdraw from the affected mine area, §§ 814(b) and (d), or pursue criminal penalties, § 820(d).

       The MSHA is established within the Department of Labor and represents the Secretary in enforcing the Mine Act. 91 Stat. 1319, 29 U. S. C. § 557a.

       Petitioner relied for this proposition on a similar case in which a mine operator refused to post the designation of a UMWA employee, a citation was issued, and the MSHA ordered abatement within 24 hours and threatened to impose daily civil penalties. See Kerr-McGee Coal Corp. v. Secretary, 15 F. M. S. H. R. C. 352 (1993), appeal pending, No. 93-1250 (CADC). Kerr-McGee complied but contested the citation. An administrative law judge rejected the operator’s claim, and the Commission affirmed, holding that § 813(f) did not violate the NLRA. 15 F M. S. H. R. C., at 362-363. The Commission eventually fined Kerr-McGee a total of $300 for its noncompliance.

       App. to Pet. for Cert. A-24. Before the Court of Appeals ruled on the appeal from the preliminary injunction, the District Court held a trial and entered a permanent injunction in favor of petitioner. See Thunder Basin Coal Co. v. Martin, No. 91-CV-0050-B (D. Wyo., Mar. 13, 1992). The Court of Appeals subsequently denied petitioner’s motion to stay appeal of the preliminary injunction and to consolidate the two cases, finding conclusive its holding that the District Court lacked jurisdiction. 969 F. 2d 970, 973, n. 3 (CA10 1992).

       Because court of appeals review is available, this case does not implicate “ ‘the strong presumption that Congress did not mean to prohibit all judicial review.’ ” Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 672 (1986), quoting Dunlop v. Bachowski, 421 U. S. 560, 567 (1975).

       30 U. S. C. § 823(d)(2). The Commission exercises discretionary review over any case involving, among others, a “substantial question of law, policy or discretion,” § 823(d)(2)(A)(ii)(IV), and may review on its own initiative any decision “contrary to law or Commission policy” or in which “a novel question of policy has been presented,” § 823(d)(2)(B). Any ALJ decision not granted review by the Commission within 40 days becomes a “final decision of the Commission.” § 823(d)(1).

       The statutory criteria are “the operator’s history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance.” 30 U. S. C. §820(i).

       Petitioner points to § 960, which provides that “no justice, judge, or court of the United States shall” enjoin enforcement of interim mandatory-health and safety standards, and to § 815(a), which provides that citations not contested in a timely manner are “not subject to review by any court or agency,” as evidence that Congress expressly prohibited federal jurisdiction when it so intended. Petitioner misconstrues § 960, which bars a certain form of relief but says nothing about the appropriate forum for a challenge. Section 815(a) similarly provides only that failure timely to challenge a citation precludes review before the Commission and court of appeals; it does not suggest that district court review is otherwise available. In light of the Act’s other provisions granting district courts jurisdiction over challenges brought only by the Secretary, §§ 818(a) and 820(j), petitioner’s argument based on the maxim expressio unius est exclusio alterius is unpersuasive.

       In February 1972, for example, 125 persons were killed when a mine dam broke at Buffalo Creek in West Virginia. Leg. Hist. 592. See generally G. Stern, The Buffalo Creek Disaster (1976). Ninety-one miners died of carbon monoxide asphyxiation in May 1972 at the Sunshine Silver Mine in Idaho. In July 1972, nine miners were killed in a mine fire in Blacks-ville, W. Va., and in March 1976, 23 miners and 3 federal inspectors died in methane gas explosions at the Scotia coal mine in Kentucky. Ibid.

      The House and Senate Committee Reports observed that these accidents resulted from hazards that were remediable and that in many cases already had been the object of repeated enforcement efforts. See generally Leg. Hist. 362, 371, 592-593, 637. The 1972 Buffalo Creek disaster, for example, occurred after the mine had been assessed over $1.5 million in penalties, “not one cent of which had been paid.” Id., at 631. Sixty-two ventilation violations were noted in the two years prior to the Scotia gas explosions, but the imposed penalties failed to coerce compliance. Id., at 629-630.

       The 1977 Mine Act renamed and amended the Federal Coal Mine Health and Safety Act of 1969 (Coal- Act), 91 Stat. 1290, and repealed the Federal Metal and Nonmetallic Mine Safety Act of 1966, id., at 1322.

       The Senate Report found it “unacceptable that years after enactment of these mine safety laws . .. [m]ine operators still find it cheaper to pay minimal civil penalties than to make the capital investments necessary to adequately abate unsafe or unhealthy conditions, and there is still' no means by which the government can bring habitual and chronic violators of the law into compliance.” Leg. Hist. 592; see also id., at 597.

        Id., at 633. The Senate Report explained:
      “The Committee firmly believes that to effectively induce compliance, the penalty must be paid by the operator in reasonably close time proximity to the occurrence of the underlying violation. A number of problems with the current penalty assessment and collection system interfere with this. Final determinations of penalties are not self-enforcing, and operators have the right to seek judicial review of penalty determinations, and may request a de novo trial on the issues in the U. S. District Courts. This encourages operators who are not pre-disposed to voluntarily pay assessed penalties to pursue cases through the elaborate administrative procedure and then to seek redress in the Courts. Since the District Courts are still reluctant to schedule trials on these cases, and the Department of Justice has been reluctant to pursue such cases in the courts, the matters generally languish at that stage, and the penalties go uncollected.” Id., at 604.

       The Senate Report’s citation, see Leg. Hist. 602, of Bituminous Coal Operators’ Assn. v. Secretary of Interior, 547 F. 2d 240 (CA4 1977) (holding that pre-enforcement district court challenges were not precluded under the 1969 Coal Act), does not support petitioner’s claim that Congress intended to preserve district court jurisdiction over pre-enforcement suits. That case was cited for an unrelated proposition and does not constitute a “settled judicial construction” that Congress presumptively preserved. United States v. Powell, 379 U. S. 48, 55, n. 13 (1964); see also Keene Corp. v. United States, 508 U. S. 200, 207-209 (1993).

       See Cyprus Empire Corp. v. Secretary, 15 F. M. S. H. R. C. 10 (1993) (striking workers’ entitlement to walk-around representation); Council of Southern Mountains, Inc. v. Martin County Coal Corp., 6 F. M. S. H. R. C. 206 (1984), aff’d sub nom. Council of Southern Mountains, Inc. v. FMS-HRC, 751 F. 2d 1418 (CADC 1985) (nonemployee miners’ representative entitlement to monitor training courses at the mine); Magma Copper Co. v. Secretary, 1 F. M. S. H. R. C. 1948 (1979), aff’d in part, 645 F. 2d 694 (CA9 1981) (compensation for multiple miners’ representatives).

       See Kerr-McGee Coal Corp. v. Secretary, 15 F. M. S. H. R. C. 352 (1993). The Commission concluded that there was “no basis” for limiting the designation of miners’ representatives to “member[s] of a union that also represents the miners for collective bargaining purposes under the NLRA,” id., at 361, since the “discrete safety and health purpose of the Mine Act .... render these NLRA principles inapplicable here,” id., at 362. The Commission noted that the preamble to 30 CFR pt. 40 expressly disapproves incorporation of the NLRA’s majoritarian representation principles, 15 F. M. S. H. R. C., at 359, and n. 8, and rejected petitioner’s property-rights claim, since “Lechmere does not reverse walkaround law as it has developed under the Mine Act.” Id., at 362. Cf. Emery Mining Corp. v. Secretary, 10 F. M. S. H. R. C. 276 (1988), aff’d in part and rev’d in part sub nom. Utah Power & Light Co. v. Secretary of Labor, 897 F. 2d 447 (CA10 1990) (construing the Mine Act in light of the NLRA and concluding that a miners’ representative may be a nonemployee).

       See Secretary v. Jim Walter Resources, Inc., 9 F. M. S. H. R. C. 1305, 1306-1307 (1987), aff’d, 920 F. 2d 738 (CA11 1990) (due process); Secretary v. Alabama By-Products Corp., 4 F. M. S. H. R. C. 2128, 2129-2130 (1982) (vagueness); Secretary v. Richardson, 3 F. M. S. H. R. C. 8, 21-28 (1981) (equal protection). Kaiser Coal Corp. v. Secretary, 10 F. M. S. H. R. C. 1165 (1988), does not suggest otherwise, but simply held that declaratory relief from the Commission was unavailable for a question already under consideration in the Court of Appeals.

       Cf. Weinberger v. Salfi, 422 U. S. 749, 762 (1975). This case thus does not present the “serious constitutional question” that would arise if an agency statute were construed to preclude all judicial review of a constitutional claim. See Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 681, n. 12 (1986).

       Without addressing the merits of petitioner’s underlying claim, we note that petitioner appears to misconstrue Lechmere, Inc. v. NLRB, 502 U. S. 527 (1992). The right of employers to exclude union organizers from their private property emanates from state common law, and while this right is not superseded by the NLRA, nothing in the NLRA expressly protects it. To the contrary, this Court consistently has maintained that the NLRA may entitle union employees to obtain access to an employer’s property under limited circumstances. See id., at 537; NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112 (1956). Moreover, in a related context, the Court has held that Congress’ interest in regulating the mining industry may justify limiting the private property interests of mine operators. See Donovan v. Dewey, 452 U. S. 594 (1981) (unannounced Mine Act inspections do not violate the Fourth Amendment).

       We note that petitioner expressly disavows any abstract challenge to the Mine Act’s statutory review scheme, but limits its due process claim to the present situation where the Act allegedly requires petitioner to relinquish an independent statutory right. See Brief for Petitioner 31, n. 31.

       Because we have resolved this dispute on statutory preclusion grounds, we do not reach the parties’ arguments concerning final agency action, a cause of action, ripeness, and exhaustion.

       I understand Part IV to be dealing with the issue of whether the exclusion of judicial review adjudged in Part III is constitutional. Even though, as Part III has determined, the Federal Mine Safety and Health Amendments Act of 1977 precludes judicial review of the agency action that is the subject of the present suit, the district court retains jurisdiction under the grant of general federal-question jurisdiction, see 28 U. S. C. § 1331, for the limited purpose of determining whether that preclusion itself is unconstitutional and hence ineffective. Cf. Ng Fung Ho v. White, 259 U. S. 276, 282-285 (1922) (permitting habeas corpus review of deportation orders); Battaglia v. General Motors Corp., 169 F. 2d 254, 257 (CA2 1948).


source: Caselaw Access Project

author:
Justice O’Connor
      Justice Blackmun,
      Justice Stevens,

license: Public Domain

text:
    SCHIRO v. FARLEY, SUPERINTENDENT, INDIANA STATE PRISON, et al.
    No. 92-7549.
    Argued November 1,1993
    Decided January 19, 1994

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Blackmun, J., filed a dissenting opinion, post, p. 237. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 239.

      Monica Foster, by appointment of the Court, 508 U. S. 970, argued the cause for petitioner. With her on the briefs was Rhonda Long-Sharp.

      Arend J. Abel, Deputy Attorney General of Indiana, argued the cause for respondents. With him on the brief were Pamela Carter, Attorney General, and Matthew R. Gutwein and Wayne E. Uhl, Deputy Attorneys General.
   Justice O’Connor

delivered the opinion of the Court.

In this case we determine whether the Double Jeopardy Clause requires us to vacate the sentence of death imposed on petitioner Thomas Schiro. For the reasons explained below, we hold that it does not.

I

Schiro was convicted and sentenced to death for murder. The body of Laura Luebbehusen was discovered in her home on the morning of February 5, 1981, by her roommate, Darlene Hooper, and Darlene Hooper’s former husband. Darlene Hooper, who had been away, returned to find the home in disarray. Blood covered the walls and floor; Laura Luebbehusen’s semiclad body was lying near the entrance. The police recovered from the scene a broken vodka bottle, a handle and metal portions of an iron, and bottles of various types of liquor.

The pathologist testified that there were a number of contusions on the body, including injuries to the head. The victim also had lacerations on one nipple and a thigh, and a tear in the vagina, all caused after death. A forensic dentist determined that the thigh injury was caused by a human bite. The cause of death was strangulation.

Laura Luebbehusen’s car was later found near a halfway house where Schiro was living. Schiro told one counselor at the halfway house he wanted to discuss something “heavy.” App. 53. Schiro later confessed to another counselor that he had committed the murder. After his arrest, he confessed to an inmate in the county jail that he had been drinking and taking Quaaludes the night of the killing, and that he had had intercourse with the victim both before and after killing her.

Schiro also admitted the killing to his girlfriend', Mary Lee. Schiro told Mary Lee that he gained access to Laura Luebbehusen’s house by telling her his car had broken down. Once in the house, he exposed himself to her. She told him that she was a lesbian, that she had been raped as a child, that she had never otherwise had intercourse before and did not want to have sex. Nonetheless, Schiro raped her numerous times. There was evidence that Schiro forced her to consume drugs and alcohol. When Laura Luebbehusen tried to escape, Schiro restrained and raped her at least once more. Then, as Laura Luebbehusen lay or slept on the bed, Schiro realized that she would have to die so that she would not turn him in. He found the vodka bottle and beat her on the head with it until it broke. He then beat her with the iron and, when she resisted, finally strangled her to death. Schiro dragged her body into another room and sexually assaulted the corpse. After the murder, he attempted to destroy evidence linking him to the crime.

II

At the time of the crime, the State of Indiana defined murder as follows:

“A person who:
“(1) knowingly or intentionally kills another human being; or
“(2) kills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape or robbery; “commits murder, a felony.” Ind. Code §35-42-1-1 (Supp. 1978).

Schiro was charged with three counts of murder. In Count I he was charged with “knowingly” killing Laura Luebbehusen; in Count II with killing her while committing the crime of rape; and in Count III with killing her while committing criminal deviate conduct. App. 3-5. The State sought the death penalty for Counts II and III.

At trial, Schiro did not contest that he had killed Laura Luebbehusen. Indeed, in closing argument, Schiro’s defense attorney stated: “Was there a killing? Sure, no doubt about it. Did Tom Schiro do it? Sure .... There’s no question about it, I’m not going to try . . . and ‘bamboozle’ this jury. There was a killing and he did it.” App. to Brief for Respondent 24. Instead, the defense argued that Schiro either was not guilty by reason of insanity or was guilty but mentally ill, an alternative verdict permitted under Indiana law.

The jury was given 10 possible verdicts, among them the 3 murder counts described above, the lesser included offenses of voluntary and involuntary manslaughter, guilty but mentally ill, not guilty by reason of insanity, and not guilty. App. 37-38. After five hours of deliberation, the jury returned a verdict of guilty on Count II; it left the remaining verdict sheets blank.

Under Indiana law, to obtain the death penalty the State is required to establish beyond a reasonable doubt the existence of at least one of nine aggravating factors. Ind. Code' § 35-50-2-9(b) (Supp. 1978). The aggravating factor relevant here is: “[T]he defendant committed the murder by intentionally killing the victim while committing or attempting to commit . . . rape” or another enumerated felony. §35-50 — 2—9(b)(1). Upon proof beyond a reasonable doubt of an aggravating factor, the sentencer weighs the factor against any mitigating circumstances. When the initial conviction is by a jury, the “jury . . . reconvene^] for the sentencing hearing” to “recommend to the court whether the death penalty should be imposed.” §§35-50-2-9(d), (e). The trial judge makes “the final determination of the sentence, after considering the jury’s recommendation.” § 35-50-2-9(e)(2). “The court is not bound by the jury’s recommendation,” however. Ibid.

The primary issue at the sentencing hearing was the weight to be given Schiro’s mitigating evidence. Defense counsel stated to the jury that “I assume by your verdict [at the guilt phase that] you’ve probably decided” that the aggravating circumstance was proved. App. to Brief for Respondent 31-32. He therefore confined his argument to a plea for leniency, citing Schiro’s mental and emotional problems. After considering the statements of counsel, the jury recommended against the death penalty. The trial judge rejected the jury’s recommendation and sentenced Schiro to death. While the case was pending on direct appeal, the Indiana Supreme Court granted the State’s petition to remand the case to the trial court to make written findings of fact regarding aggravating and mitigating circumstances. The trial court found that the State had proved beyond a reasonable doubt that “[t]he defendant committed the murder by intentionally killing the victim while committing or attempting to commit. . . rape.” App. 46. The trial court also found that no mitigating circumstances had been established, and reaffirmed the sentence of death. Id., at 50.

The sentence was affirmed on direct appeal to the Indiana Supreme Court. Schiro v. State, 451 N. E. 2d 1047 (1983). This Court denied certiorari. Schiro v. Indiana, 464 U. S. 1003 (1983). Schiro sought postconviction relief in state court. Again, the Indiana Supreme Court affirmed the judgment of the trial court. Schiro v. State, 479 N. E. 2d 556 (1985). This Court again denied a petition for a writ of certiorari. Schiro v. Indiana, 475 U. S. 1036 (1986). Schiro then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Indiana. The District Judge remanded the case to the Indiana courts for exhaustion of state remedies. The Indiana Supreme Court affirmed the conviction and sentence for a third time. Schiro v. State, 533 N. E. 2d 1201 (1989). In so doing, the Indiana Supreme Court rejected Schiro’s argument that the jury’s failure to convict him on the first murder count operated as an acquittal of intentional murder, and that the Double Jeopardy Clause prohibited the use of the intentional murder aggravating circumstance for sentencing purposes. The Indiana Supreme Court held that “[felony murder] is not an included offense of [murder] and where the jury, as in the instant case, finds the defendant guilty of one of the types of murder and remains silent on the other, it does not operate as an acquittal of the elements of the type of murder the jury chose not to consider.” Id., at 1208. This Court denied certiorari. Schiro v. Indiana, 493 U. S. 910 (1989).

The Federal District Court then denied Schiro’s federal habeas petition. Schiro v. Clark, 754 F. Supp. 646 (ND Ind. 1990). The Court of Appeals for the Seventh Circuit affirmed. Schiro v. Clark, 963 F. 2d 962 (1992). The Court of Appeals accepted the Indiana Supreme Court’s conclusion that the jury’s verdict was not an acquittal on the Count I murder charge, and that the Double Jeopardy Clause was not violated by the use of the intentional murder aggravating circumstance. The Court of Appeals also concluded that collateral estoppel was not implicated since “the defendant must show that the jury’s verdict actually and necessarily determined the issue he seeks to foreclose” and “Schiro’s conviction for murder/rape did not act as an acquittal with respect to the pure murder charge as a matter of state law.” Id., at 970, n. 7.

We granted certiorari, 508 U. S. 905 (1993), to consider whether the trial court violated the Double Jeopardy Clause by relying on the intentional murder aggravating circumstance.

Ill

The State argues that granting relief to Schiro would require the retroactive application of a new rule, in violation of the principle announced in Teague v. Lane, 489 U. S. 288 (1989) (plurality opinion). Teague analysis is ordinarily our first step when we review a federal habeas case. See, e. g., Graham v. Collins, 506 U.S. 461, 466-467 (1993). The Teague bar to the retroactive application of new rules is not, however, jurisdictional. Collins v. Youngblood, 497 U. S. 37, 40-41 (1990). In this case, the State did not raise the Teague argument in the lower courts. Cf. Parke v. Raley, 506 U. S. 20, 26 (1993). While we ordinarily do not review claims made for the first time in this Court, see, e. g., Taylor v. Freeland & Kronz, 503 U. S. 638, 645-646 (1992), we recognize that the State, as respondent, is entitled to rely on any legal argument in support of the judgment below. See, e. g., Dandridge v. Williams, 397 U. S. 471, 475, n. 6 (1970).

Nevertheless, the State failed to argue Teague in its brief in opposition to the petition for a writ of certiorari. In deciding whether to grant certiorari in a particular case, we rely heavily on the submissions of the parties at the petition stage. See this Court’s Rule 15.1. If, as in this case, a legal issue appears to warrant review, we grant certiorari in the expectation of being able to decide that issue. Since a State can waive the Teague bar by not raising it, see Godinez v. Moran, 509 U. S. 389, 397, n. 8 (1993), and since the propriety of reaching the merits of a dispute is an important consideration in deciding whether or not to grant certiorari, the State’s omission of any Teague defense at the petition stage is significant. Although we undoubtedly have the discretion to reach the State’s Teague argument, we will not do so in these circumstances.

IV

Schiro first argues that he could not be sentenced to death based on the intentional murder aggravating circumstance, because the sentencing proceeding amounted to a successive prosecution for intentional murder in violation of the Double Jeopardy Clause.

We have recognized that the Double Jeopardy Clause consists of several protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U. S. 711, 717 (1969) (footnotes omitted). These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense. United States v. Wilson, 420 U. S. 332, 339 (1975). The Clause operates as a “bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent.” United States v. DiFrancesco, 449 U. S. 117, 136 (1980). When a defendant has been acquitted, the “Clause guarantees that the State shall not be permitted to make repeated attempts to convict him.” Wilson, supra, at 343. Where, however, there is “no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended.” 420 U. S., at 344 (footnote omitted). Thus, our cases establish that the primary evil to be guarded against is successive prosecutions: “[T]he prohibition against multiple trials is the controlling constitutional principle.” DiFrancesco, supra, at 132 (internal citations omitted). See also United States v. Martin Linen Supply Co., 430 U. S. 564, 569 (1977).

Schiro urges us to treat the sentencing phase of a single prosecution as a successive prosecution for purposes of the Double Jeopardy Clause. We decline to do so. Our prior decisions are inconsistent with the argument that a first sentencing proceeding can amount to a successive prosecution. In Stroud v. United States, 251 U. S. 15, 17-18 (1919), we held that where a defendant’s murder conviction was overturned on appeal, the defendant could be resentenced after retrial. Similarly, we found no constitutional infirmity in holding a second sentencing hearing where the first sentence was improperly based on a prior conviction for which the defendant had been pardoned. Lockhart v. Nelson, 488 U. S. 33 (1988). See also North Carolina v. Pearce, supra, at 721 (“[W]e cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment” upon retrial); Chaffin v. Stynchcombe, 412 U. S. 17, 23-24 (1973) (same). If a second sentencing proceeding ordinarily does not violate the Double Jeopardy Clause, we fail to see how an initial sentencing proceeding could do so.

We have also upheld the use of prior convictions to enhance sentences for subsequent convictions, even though this means a defendant must, in a certain sense, relitigate in a sentencing proceeding conduct for which he was previously tried. Spencer v. Texas, 385 U. S. 554, 560 (1967). Cf. Moore v. Missouri, 159 U. S. 673, 678 (1895) (“[T]he State may undoubtedly provide that persons who have been before convicted of a crime may suffer severer punishment for subsequent offences than for a first offence”). In short, as applied to successive prosecutions, the Clause “is written in terms of potential or risk of trial and conviction, not punishment.” Price v. Georgia, 398 U. S. 323, 329 (1970).

Our decision in Bullington v. Missouri, 451 U. S. 430 (1981), is not to the contrary. Bullington was convicted of capital murder. At the first death penalty sentencing proceeding, the jury rejected the death penalty and sentenced him to a term of years. The conviction was overturned; on resentencing the State again sought the death penalty. In Bullington we recognized the general rule that “the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial.” Id., at 438. Nonetheless, we recognized a narrow exception to this general principle because the capital sentencing scheme at issue “differed] significantly from those employed in any of the Court’s cases where the Double Jeopardy Clause has been held inapplicable to sentencing.” Ibid. Because the capital sentencing proceeding “was itself a trial on the issue of punishment,” ibid., requiring a defendant to submit to a second, identical proceeding was tantamount to permitting a second prosecution of an acquitted defendant, id., at 446.

This case is manifestly different. Neither the prohibition against a successive trial on the issue of guilt nor the Bullington prohibition against a second capital sentencing proceeding is implicated here — the State did not reprosecute Schiro for intentional murder, nor did it force him to submit to a second death penalty hearing. It simply conducted a single sentencing hearing in the course of a single prosecution. The state is entitled to “one fair opportunity” to prosecute a defendant, Bullington, supra, at 446 (internal quotation marks omitted), and that opportunity extends not only to prosecution at the guilt phase, but also to present evidence at an ensuing sentencing proceeding.

V

Schiro also contends that principles of constitutional collateral estoppel require vacation of his death sentence. In Ashe v. Swenson, 397 U. S. 436 (1970), we held that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel in criminal proceedings. See also Dowling v. United States, 493 U. S. 342,347 (1990). Collateral estoppel, or, in modern usage, issue preclusion, “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U. S., at 443. Schiro reasons that the jury acquitted him of “intentionally” murdering Laura Luebbehusen, and that as a result, the trial court was precluded from finding the existence of the aggravating circumstance that he “committed the murder by intentionally killing the victim while committing or attempting to commit . . . rape.” We do not address whether collateral estoppel could bar the use of the “intentional” murder aggravating circumstance, because Schiro has not met his burden of establishing the factual predicate for the application of the doctrine, if it were applicable, namely, that an “issue of ultimate fact has once been determined” in his favor. Ibid.

The Indiana Supreme Court concluded that the jury verdict did not amount to an acquittal on the intentional murder count. Schiro v. State, 533 N. E. 2d, at 1201. Ordinarily on habeas review, we presume the correctness of state court findings of fact. See 28 U. S. C. § 2254(d). Cf. also Cichos v. Indiana, 385 U. S. 76, 79-80 (1966). The preclusive effect of the jury’s verdict, however, is a question of federal law which we must review de novo. Cf. Ashe v. Swenson, 397 U. S., at 444.

We must first determine “whether a rational jury could have grounded its verdict upon an issue other than” Schiro’s intent to kill. Ibid. Cf. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4421, p. 192 (1981) (“Issue preclusion attaches only to determinations that were necessary to support the judgment entered in the first action”). To do so, we “examine the record of a prior proceeding taking into account the pleadings, evidence, charge, and other relevant matter....” Ashe v. Swenson, supra, at 444 (internal quotation marks omitted). The burden is “on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Dowling, 493 U. S., at 350. In Dowling, for example, the defendant contended that because he had been acquitted of a robbery, the jury must have concluded that he had not been present at the crime. Ibid. In rejecting that argument, we considered the fact that during the trial there was a discussion between the lawyers and the judge where it was asserted that the intruder’s identity was not a factual issue in the case. Id., at 351. Because there were “any number of possible explanations for the jury’s acquittal verdict,” the defendant had “failed to satisfy his burden of demonstrating” that he was not one of the intruders. Id., at 352.

Applying these principles, we find that the jury could have grounded its verdict on an issue other than Schiro’s intent to kill. The jury was not instructed to return verdicts on all the counts listed on the verdict sheets. In fact, there are indications in the record that the jury might have believed it could only return one verdict. In closing argument at the guilt phase, defense counsel told the jury that it would “have to go back there and try to figure out which one of eight or ten verdicts . . . that you will return back into this Court.” App. to Brief for Respondents 17. The prosecution also told the jury that “you are only going to be allowed to return one verdict.” Id., at 27. Although the jury instructions indicated to the jury that more than one verdict was possible, id, at 27-28, on this record it is impossible to tell which of these statements the jury relied on. The dissent concludes that the jury acquitted on Count I for lack of intent, based on the fact that the only way the jury could have expressed that conclusion was by leaving the Count I verdict form blank, as it did. What stands in the way of such an inference, however, is that the jury would also have acted as it did after reaching a guilty verdict on Count II but without ever deliberating on Count I. In short, since it was not clear to the jury that it needed to consider each count independently, we will not draw any particular conclusion from its failure to return a verdict on Count I.

The jury instructions on the issue of intent to kill were also ambiguous. Under Indiana law, a person who either “knowingly or intentionally kills another human being” or “kills another human being while committing or attempting to commit... rape” is guilty of “murder.” Ind. Code §35-42-1-1 (Supp. 1978). Thus, intent to kill is not required for a felony murder conviction. Schiro reasons that since the jury found him guilty of felony murder in the course of a rape, but failed to convict him of intentional murder, the jury must have found that he did not have an intent to kill.

We do not so interpret the jury’s failure to convict on Count I, however. Although the jury was provided with the state law definition of murder, App. 21, the judge also instructed the jury that the State had to prove intent for both felony and intentional murder: “To sustain the charge of murder, the State must prove . . . [t]hat the defendant engaged in the conduct which caused the death of Laura Luebbehusen [and] [t]hat when the defendant did so, he knew the conduct would or intended the conduct to cause the death of Laura Luebbehusen.” Id, at 22-23 (emphasis added). This instruction did not differentiate between the two ways of proving “murder” under Indiana law. The jury was further told that “[t]he instructions of the court are the best source as to the law applicable to this case.” Id., at 20. The jury may well have believed, therefore, that it was required to find a knowing or intentional killing in order to convict Schiro on any of the three murder counts. In sum, in light of the jury instructions, we find that as a matter of law the jury verdict did not necessarily depend on a finding that Schiro lacked an intent to kill.

Although not necessary to our conclusion, we note that there is additional evidence in the record indicating that Schiro’s intent to kill was not a significant issue in the case. The defense primarily confined its proof at trial to showing that Schiro was insane, and did not dispute that Schiro had committed the murder. At no point during the guilt phase did defense counsel or any of the defense witnesses assert that Schiro should be acquitted on Count I because he lacked an intent to kill. Indeed, we have located no point in the transcript of the proceedings where defense counsel or defense witnesses even discussed the issue of Schiro’s intent to kill. Schiro argues that his intent to kill was put in issue by the insanity defense. But, even if that were so, the jury did not accept this defense. Even defense counsel apparently believed that Schiro’s intent was not an issue in the case. After the jury returned its verdict of guilty on Count II, and reconvened to consider the appropriate sentence, defense counsel indicated his belief that by convicting Schiro on Count II, the jury had found that he had an intent to kill:

“The statute... provides for aggravating circumstances. There is one listed in this case, and one which you may consider. And that one is that the murder was committed, was intentionally committed in the commission of rape and some other things. I assume by your verdict Friday, or Saturday, that you’ve probably ... decided that issue. In finding him guilty of murder in the commission of rape, I’m assuming you’ve decided beyond a reasonable doubt that it was done in the commission of a rape, and so that aggravating circumstance most likely exists in your mind.” App. to Brief for Respondent 31-32.

Finally, we observe that a jury finding of intent to kill is entirely consistent with the evidence presented at trial. By Schiro’s own admission, he decided to kill Laura Luebbehusen after she tried to escape and he realized she would go to the police. In addition, the physical evidence suggested a deliberate, rather than unintentional, accidental, or even reckless, killing. The victim was repeatedly beaten with a bottle and an iron; when she resisted, she was strangled to death.

We have in some circumstances considered jury silence as tantamount to an acquittal for double jeopardy purposes. Green v. United States, 355 U. S. 184, 190-191 (1957); Price v. Georgia, 398 U. S., at 329. The failure to return a verdict does not have collateral estoppel effect, however, unless the record establishes that the issue was actually and necessarily decided in the defendant’s favor. As explained above, our cases require an examination of the entire record to determine whether the jury could have “grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe, 397 U. S., at 444 (internal quotation marks omitted). See also Dowling, 493 U. S., at 350. In view of Schiro’s confession to the killing, the instruction requiring the jury to find intent to kill, and the uncertainty as to whether the jury believed it could return more than one verdict, we find that Schiro has not met his “burden ... to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided” in his favor. Ibid.

The judgment of the Court of Appeals is affirmed.

So ordered.

Justice Blackmun,

dissenting.

I join Justice Stevens’ dissenting opinion. I write separately because I believe Bullington v. Missouri, 451 U. S. 430 (1981), provides a compelling alternative ground for vacation of Schiro’s death sentence.

In Bullington, this Court held that once a capital defendant is acquitted of the death sentence, the Double Jeopardy Clause bars his again being placed in jeopardy of death at a subsequent sentencing proceeding. The majority rejects Schiro’s double jeopardy claim on the theory that because “a second sentencing proceeding ordinarily does not violate the Double Jeopardy Clause,” it fails to see “how an initial sentencing proceeding could do so.” Ante, at 230. The essential holding of Bullington, however, was that capital sentencing proceedings uniquely can constitute a “jeopardy” under the Double Jeopardy Clause. The proceeding examined in Bullington had “the hallmarks of the trial on guilt or innocence,” 451 U. S., at 439, where the prosecution must “prov[e] its case” beyond a reasonable doubt, id., at 443. We concluded that such a bifurcated capital penalty proceeding is itself a trial that places a defendant in jeopardy of death. Ibid.

The sentencing proceeding at issue here is indistinguishable from that confronted in Bullington. As Justice De-Bruler noted in dissent from the affirmance of Schiro’s sentence on direct appeal:

“[T]he jury reconvenes in court for the sentencing hearing. It is presided over by the judge. The defendant is present with his counsel and the state by its trial prosecutor. Evidence is presented in an adversarial setting .... The burden is upon the state to prove the aggravating circumstance beyond a reasonable doubt. The lawyers make final arguments to the jury. The jury retires to deliberate and returns into open court with its verdict in the form of a recommendation. This is a full scale jury trial in every sense of those terms. The defendant must surely feel that he is in ‘direct peril’ of receiving the death penalty as he stands to receive the recommendation of the jury.” Schiro v. State, 451 N. E. 2d 1047, 1065 (Ind. 1983) (citation omitted).

The “unique” nature of modern capital sentencing proceedings identified in Bullington, 451 U. S., at 442, n. 15, derives from the fundamental principle that death is “different,” see, e. g., Gardner v. Florida, 430 U. S. 349, 357 (1977) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion); see also Furman v. Georgia, 408 U. S. 238, 306 (1972) (Stewart, J., concurring), and that heightened reliability is required at all stages of the capital trial. The “trial-like” nature of Schiro’s capital sentencing proceeding, and the trauma he necessarily underwent in defending against the sentence of death, are directly analogous to guilt-phase proceedings and thus bring the Double Jeopardy Clause into play.

Even if the issue of Schiro’s intent to kill was not “actually and necessarily decided” for collateral estoppel purposes, ante, at 236, the jury’s failure to convict Schiro of intentional murder impliedly acquitted him under the Double Jeopardy Clause. See Green v. United States, 355 U. S. 184, 191 (1957) (jury “was given a full opportunity to return a verdict”); Price v. Georgia, 398 U. S. 323,329 (1970). As Justice Stevens pointedly notes, post, at 243, there is no question that Schiro could not have been reprosecuted for intentional murder. Nor is there any question that the aggravator required the prosecution to prove again at sentencing, beyond a reasonable doubt, the identical elements of that murder charge. Thus, “the jury ha[d] already acquitted the defendant of whatever was necessary to impose the death sentence.” 451 U. S., at 445. Over a unanimous jury recommendation of life and after a State Supreme Court remand, the trial judge condemned Schiro to death in reliance nunc pro tunc on the very conduct for which Schiro had been acquitted. This sentence cannot be tolerated under the Double Jeopardy Clause.

I respectfully dissent.

Justice Stevens,

with whom Justice Blackmun joins, dissenting.

The jury found Thomas Schiro guilty of felony murder but not intentional murder. Thereafter, in a separate sentencing hearing, the same jury unanimously concluded that Schiro did not deserve the death penalty, presumably because he had not intended to kill. Nevertheless, without finding any aggravating circumstance, the trial judge overrode the jury’s recommendation and sentenced Schiro to death. Months later, when the Indiana Supreme Court remanded the case to give the judge an opportunity to justify that sentence, the judge found that Schiro had intentionally killed his victim. That finding, like the majority’s holding today, violated the central purpose of the Double Jeopardy Clause. After the issue of intent had been raised at trial and twice resolved by the jury, and long after that jury had been discharged, it was constitutionally impermissible for the trial judge to reexamine the issue. Because the death sentence rests entirely on that unauthorized finding, the law requires that it be set aside.

I

The Court devotes most of its opinion to a discussion of the facts. I cannot disagree that the gruesome character of the crime is significant. It is important precisely because it is so favorable to prosecutors seeking the death penalty. Such facts undoubtedly would increase jurors’ inclination to impose the death penalty if they believed the defendant had intentionally killed his unfortunate victim. Yet in this case, despite the horror of the crime, the jurors still unanimously refused to find Schiro guilty of intentional murder and unanimously concluded that he should not be executed. These determinations are enigmatic unless the jury resolved the intent issue in Schiro’s favor.

The principal issue at trial was Schiro’s mental condition. No one disputed that he had caused his victim’s death, but intent remained at issue in other ways. Five expert witnesses — two employed by the State, one selected by the court, and two called by the defense — testified at length about Schiro’s unusual personality, e. g., Tr. 1699, his drug and alcohol addiction, id., at 1859, 1877, and his history of mental illness, e. g., id., at 1412, 1414, 1703-1708, 1871, 1877. Lay and expert witnesses described Schiro’s bizarre attachment to a mannequin, id., at 1469-1470,1699-1702, and other incidents that lent support to a claim of diminished capacity. Conceivably, that evidence might have persuaded the jury to find Schiro not responsible by reason of insanity, App. 37, or guilty of murder, voluntary manslaughter, or involuntary manslaughter but mentally ill, id., at 37-38. Instead, that evidence and the details of Schiro’s confessions apparently convinced the jury that at the time of his offense, Schiro did not have the requisite mental state to support a conviction for intentional murder.

A careful perusal of the verdict forms demonstrates that there is nothing even arguably ambiguous about the jury’s verdict and that the jurors expressed their conclusion in the only way they could. Each of the 10 forms contained a space to be checked to record agreement with a proposed verdict. The only way to record disagreement was to leave the space blank. Thus, by leaving nine forms blank and checking only one, the jurors rejected seven alternatives that were favorable to the defendant (two involving lesser offenses, one finding the defendant not responsible by reason of insanity, three finding him guilty of murder or lesser offenses but mentally ill, and one finding him not guilty of anything), rejected two alternatives favorable to the prosecution (guilty on Counts I and III), and ultimately recorded their conclusion that he was guilty on Count II. The jurors therefore found Schiro guilty on Count II and not guilty on the remainder of the charges. Notably, only the fourth verdict form provided for a not guilty verdict, and that form could not be executed unless the defendant was not guilty of all charges. The only way the jurors could return a verdict of guilty on Count II and not guilty on the other counts was to check the fifth form and leave the others blank — which is exactly what they did.

Even if the record were less clear, the governing rule of law would lead to the same conclusion. After a full trial, the jury was given the opportunity to find Schiro guilty on each of three counts of murder, on just two of those counts, or on just one. As in the similar situation in Green v. United States, 355 U. S. 184 (1957), the jury’s silence on two counts should be treated no differently, for double jeopardy purposes, than if the jury had returned a verdict that expressly read: “ ‘We find the defendant not guilty of intentional murder but guilty of murder in the second degree.”’ Id., at 191. The only rational explanation for such a verdict is a failure of proof on the issue of intent — a failure that should have precluded relitigation of that issue at sentencing. As Justice DeBruler of the Indiana Supreme Court explained in his dissenting opinion:

“At the trial, the prosecution used every resource at its disposal to persuade the jury that appellant had a knowing state of mind when he killed his victim. It failed to do so. At the sentencing hearing before the jury it had an opportunity to persuade the jury that appellant had an intentional state of mind when he killed his victim. The jury returned a recommendation of no death. At the sentencing hearing before the judge, the prosecution had yet another opportunity to demonstrate an intentional state of mind, and finally succeeded. In my view, the silent, verdict of the jury on Count I, charging a knowing state of mind, must be deemed the constitutional equivalent of a final and immutable rejection of the State’s claim that appellant deserves to die because he had an intentional state of mind. That verdict acquitted appellant of that condition which was necessary to impose the death penalty under this charge.” Schiro v. State, 533 N. E. 2d 1201, 1209 (1989).

In this case the trial judge’s decision to override the jury’s recommendation against the death sentence rested entirely on his finding that Schiro had intentionally killed his victim — an aggravating circumstance that, in Indiana capital sentencing proceedings, must be established beyond a reasonable doubt. Ind. Code § 35-50-2-9(e)(l) (Supp. 1978). In other words, the judge sentenced Schiro to death because he was guilty of intentional murder, even though the jury had found otherwise. Even though the Court has held that the Constitution does not preclude a judge from overriding a jury’s recommendation of a life sentence, Spaziano v. Florida, 468 U. S. 447, 490 (1984), an egregious violation of the collateral estoppel principles embedded in the Double Jeopardy Clause occurs if the judge can base a capital sentence on a factual predicate that the jury has rejected. That is what happened here.

II

Having failed to convict Schiro of intentional murder after a full trial, the State plainly could not retry him for that offense after the jury was discharged. An estoppel that would bar a retrial should equally foreclose a death sentence predicated on a postverdict reexamination of the central issue resolved by the jury against the State. Schiro’s execution will nonetheless go forward because the trial judge made a postverdict finding equivalent to a determination that Schiro was guilty of intentional murder. The Court attempts to justify this anomalous result by relying on the improbable assumption that the jury may not have resolved the intent issue in Schiro’s favor. The Court advances three reasons in support of that assumption: Schiro’s “confession to the killing, the instruction requiring the jury to find intent to kill, and the uncertainty as to whether the jury believed it could return more than one verdict.” Ante, at 236. None justifies the majority’s result.

As to Schiro’s confessions, such statements must be evaluated in the context of the entire record. Even though they would have been sufficient to support a guilty verdict on the intentional murder count, it is quite wrong to suggest that they necessitated such a verdict. See Schiro v. State, 451 N. E. 2d 1047, 1068 (Ind. 1983) (Prentice, J., concurring and dissenting) (stating that a finding of intentional killing “was not compelled”). The record as a whole, including the experts’ testimony, is fully consistent with the conclusion that the jury rejected the prosecutor’s submission on the intent question.

The Court also seeks support from the trial court’s Instruction No. 8, which informed the jury that to sustain the charge of murder, the State had to prove intent. Ante, at 234. Most naturally read, however, that instruction referred only to the knowing or intentional murder charge in Count I. It did not, as the Court’s opinion suggests, expressly refer to “both” felony and intentional murder, ibid.; on the contrary, it made no mention of felony murder. In Indiana, intent to kill is not an element of felony murder. Accordingly, the definition of murder in Instruction No. 4 clearly indicated that a person commits murder either when he knowingly or intentionally kills someone or when he “[kjills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape or robbery.” App. 21; Ind. Code §35-42-2-1 (Supp. 1978). If Instruction No. 8 were intended to refer to the felony murder charges in Counts II and III, it plainly misstated the law. The instruction did accurately state the elements of the knowing or intentional murder charge in Count I, however. It is worth noting that not one of the seven opinions that various members of the Indiana Supreme Court wrote at different stages of this litigation construed that instruction as applicable to Counts II and III.

Finally, the Court surmises that the jury “might have believed it could only return one verdict.” Ante, at 233. In view of the trial court’s instruction that the jury foreman “must sign and date the verdict(s) to which you all agree,” App. 28, this speculation is unfounded. Similarly unwarranted is the majority’s reliance upon isolated remarks by the prosecution and defense counsel to substantiate this speculation. Defense counsel understandably urged the jury to return only one verdict because he was seeking a verdict that would exonerate his client or minimize his culpability. Any one of 7 of the 10 forms submitted to the jury would have served that purpose. In fact, after defense counsel made the amorphous reference to one verdict in his closing argument, he went on to suggest that the jurors consider first the question of insanity, “because depending on that, you may just stop there or go on.” App. to Brief for Respondents 17 (emphasis added).

As to the prosecutor’s comment about “one verdict,” id., at 27, if that statement meant that the jury could only return 1 of the 10 forms, it blatantly misstated Indiana law. More plausibly, the comment referred to a verdict in the general sense as the jury’s one opportunity to return one or more verdict forms. In any event, we should not uphold a death sentence based on such an insubstantial and improper predicate.

Nothing the Indiana Supreme Court said supports the Court’s speculation about the jury’s reasons for failing to return a guilty verdict on Count I. Moreover, the Court refuses to acknowledge that the only way the jury could use the verdict forms submitted to it to express the conclusion that Schiro was guilty on Count II and not guilty on Counts I and III was to do just what it did — that is, to authorize the foreman to sign the verdict form for felony murder and to leave blank those forms for intentional murder and criminal deviate conduct. Once found not guilty of intentional murder, Schiro could not thereafter have been prosecuted a second time for that offense. Given that Schiro admitted the killing, the only issue that the jury’s verdict on Count I could possibly have resolved in his favor is the intent issue. Since there is not even an arguable basis for assuming that the jury’s verdict on Count I was grounded on any other issue, the collateral estoppel component of the Double Jeopardy Clause also precluded the State from attempting to prove intentional murder at the penalty phase to support a sentence of death.

As Justice Stewart explained in his opinion for the Court in Ashe v. Swenson, 397 U. S. 436, 444 (1970) (footnotes omitted):

“The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ Sealfon v. United States, 332 U. S. 575, 579. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.”

A fair appraisal of the general verdict of acquittal on Count I compels the conclusion that Schiro’s death sentence rests entirely on the trial judge’s constitutionally impermissible reexamination of the critical issue resolved in Schiro’s favor by the jury’s verdict on Count I. The Court’s contrary conclusion rests on a “technically restrictive” approach that amounts to a rejection of the rule of collateral estoppel in capital sentencing proceedings.

I respectfully dissent.

       Under Indiana’s death penalty statute, the State may seek the death penalty for murder by proving beyond a reasonable doubt the existence of at least one statutory aggravating circumstance. Ind. Code § 35-50-2-9(a) (Supp. 1978). The only aggravating circumstance at issue here was whether the defendant committed the murder by intentionally killing the victim while committing or attempting to commit rape or one of six other enumerated felonies. § 35-50-2-9(b)(l). When trial is by jury, the jury that convicted the defendant may recommend the death penalty only if it finds that the state proved beyond a reasonable doubt that at least one aggravating circumstance exists and that the aggravating circumstances outweigh any mitigating circumstances. § 35-50-2-9(e).

         Each form began: “We, the jury, find the defendant . . . .” The 10 alternatives were:
      (1) “. . . not responsible by reason of insanity at the time of the death ....”
      (2) “.. . guilty of Murder but mentally ill....”
      (3) “... guilty of the Murder of Laura Luebbehusen as charged in Count I of the information.”
      (4) “.. . not guilty.”
      (5) “... guilty of Murder while the said Thomas N. Schiro was committing and attempting the crime of rape as charged in Count II of the information.”
      (6) “... guilty while ... committing and attempting to commit the crime of criminal deviate conduct as charged in Count III of the information.”
      (7) “. . . guilty of. . . the included offense of Voluntary Manslaughter.”
      (8) “... guilty of... the included offense of Involuntary Manslaughter.”
      (9) “... guilty of... Voluntary Manslaughter, but mentally ill.”
      (10) “. . . guilty of . . . Involuntary Manslaughter, but mentally ill.” App. 37-38.

       “American courts have held with uniformity that where a defendant is charged with two offenses, neither of which is a lesser offense included within the other, and has been found guilty on one but not on the second he cannot be tried again on the second____” 355 U. S., at 194, n. 14. See also Price v. Georgia, 398 U. S. 323, 328-329 (1970).

         To be sure, it is generally accepted among the Federal Courts of Appeals that a judge may base a sentence in a noncapital case upon factors that the jury did not find beyond a reasonable doubt. See, e. g., United States v. Carrozza, 4 F. 3d 70, 80 (CA1 1993); United States v. Olderbak, 961 F. 2d 756, 764-765 (CA8), cert. denied, 506 U. S. 959 (1992); United States v. Averi, 922 F. 2d 765, 765-766 (CA11 1991); United States v. Rodriguez-Gonzalez, 899 F. 2d 177,180-182 (CA2), cert. denied, 498 U. S. 844 (1990); United States v. Isom, 886 F. 2d 736, 738-739 (CA4 1989); United States v. Juarez-Ortega, 866 F. 2d 747, 749 (CA5 1989); see also McMillan v. Pennsylvania, 477 U. S. 79 (1986) (applying preponderance-of-evidence standard to sentencing considerations under state mandatory minimum statute satisfies due process). This view stems from the lower standard of proof required to establish sentencing factors in noncapital cases. United States v. Mocciola, 891 F. 2d 13, 16-17 (CA1 1989). But reliance upon this principle cannot sustain such a practice in a capital case where the sentencing factors — just as the elements at trial — must be proved beyond a reasonable doubt.

       The Court correctly avoids reliance upon the quite different rationale— namely, the distinction between a “knowing” killing and an “intentional” killing — that the Indiana Supreme Court adopted. Noting that Count I merely required the jury to find that Schiro had “knowingly” killed his victim, whereas the aggravating circumstance supporting the death penalty required proof that he had “intentionally” killed, the court concluded that the verdict on Count I “could not be considered to have included any conclusion” on the intent issue raised at the sentencing hearing. Schiro v. State, 533 N. E. 2d 1201, 1208 (Ind. 1989). Yet because an “intentional” killing requires greater awareness of the consequences of the act than a “knowing” killing, such an illusory distinction is plainly unsatisfactory. As the dissenting justices pointed out, the difference between the two states of mind is insignificant and, in this instance, esoteric: “To accord the difference, one would have to believe that a person can be presently unaware that he is strangling another, while at the same time having a goal presently in mind to strangle such other person.” Id, at 1209.

       Specifically, Instruction No. 8 provided that “to sustain the charge of murder,” the State must prove (1) that “the defendant engaged in the conduct which caused the death of Laura Luebbehusen,” and (2) that “when the defendant did so, he knew the conduct would or intended the conduct to cause the death of Laura Luebbehusen.” App. 22-23. The instruction further stated that “[i]f you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, and that the defendant was not insane at the time of the murder, then you should find the defendant guilty.” Id., at 23.

       If, as the Court assumes, the jury believed “that it was required to find a knowing or intentional killing in order to convict Schiro on any of the three murder counts,” ante, at 235, there is no rational explanation for its failure to return a guilty verdict for intentional murder (Count I) if it believed convicting Schiro of killing during the commission of rape (Count II) also required a knowing or intentional killing.

       The judge’s final instructions to the jury set forth no limitation on the number of verdicts it might properly return, and Indiana juries have regularly found a defendant guilty of both mens rea murder and felony murder with respect to a single killing. See, e. g., Roche v. State, 596 N. E. 2d 896 (Ind. 1992); Lewis v. State, 595 N. E. 2d 753 (Ind. App. 1992); Hopkins v. State, 582 N. E. 2d 345 (Ind. 1991).

       The Court’s suggestion that the jury may have reached “a guilty verdict on Count II . . . without ever deliberating on Count I,” ante, at 234, is not only pure speculation, but highly improbable. Presumably jurors would normally begin their deliberations with the first count in the indictment or the first verdict form the court submitted to them.
      It is also noteworthy that the record explains why the jury concluded that Schiro was not guilty of killing while committing or attempting to commit criminal deviate conduct as charged in Count III — namely, that Schiro killed his victim prior to the deviate sexual conduct on which the charge was based rather than while he was engaged in that predicate felony. Thus the record fully supports the jury’s disposition of the three counts at the guilt phase of the trial as well as its decision at the penalty phase.