# Sawyer v. Smith

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## Dissenting Opinion

    Marshall
United States Supreme Court
497 U.S. 227
Sawyer v. Smith
No. 89-5809 Argued: April 25, 1990. --- Decided: June 21, 1990
See 497 U.S. 1051, 111 S.Ct. 17.
Syllabus
Petitioner Sawyer's conviction and death sentence for a brutal murder became final in 1984. The Federal District Court denied his habeas corpus petition, which was based in relevant part on the argument that the prosecutor's closing argument during the penalty phase of his trial diminished the jury's sense of responsibility for the capital sentencing decision, in violation of this Court's 1985 decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231. While his appeal of the denial of habeas relief was pending, this Court decided Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, under which a new rule of constitutional law established after a petitioner's conviction has become final may not be used to attack the conviction on federal habeas corpus unless the rule (1) places an entire category of primary conduct beyond the reach of criminal law, id., at 311, 109 S.Ct., at 1075, or prohibits imposition of a certain type of punishment for a class of defendants because of their status or offense, see Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256, or (2) applies a new watershed rule of criminal procedure that enhances accuracy and is necessary to the fundamental fairness of the criminal proceeding, 489 U.S., at 312-313, 109 S.Ct., at 1076. The Court of Appeals affirmed the denial of relief, holding that Caldwell announced a new rule within the meaning of Teague and did not fall within Teague's second exception.
Held: Petitioner is not entitled to federal habeas relief, because Caldwell announced a new rule, as defined by Teague, that does not come within either of the Teague exceptions. Pp. 233-245.
(a) Caldwell's result was not dictated by Eighth Amendment precedent existing at the time petitioner's conviction became final. No case prior to Caldwell invalidated a prosecutorial argument as impermissible under the Eighth Amendment. The discussion of improper prosecutorial comment in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431, a noncapital murder case, was based on the Due Process Clause's guarantees of fundamental fairness, not the Eighth Amendment's more particular guarantees of sentencing reliability. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1; Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973; Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393; and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, earlier Eighth Amendment cases, spoke to the general issue of sentencing reliability but not to the issue decided in Caldwell, and Teague would be meaningless if applied at such a level of generality. In 1984, from a state court's point of view, there were indications that Caldwell was not an Eighth Amendment requirement, see California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171; Maggio v. Williams, 464 U.S. 46, 104 S.Ct. 311, 78 L.Ed.2d 43, and there was some doubt as to this Court's view concerning a major premise of Caldwell, that misleading prosecutorial comment might cause a bias in favor of death sentences, see Dobbert v. Florida, 432 U.S. 282, 294, and n. 7, 97 S.Ct. 2290, 2298-2299, and n. 7, 53 L.Ed.2d 344. It cannot be said that state cases were anticipating the Caldwell rule when they prohibited similar prosecutorial statements, because their decisions were based on state law and did not purport to construe the Eighth Amendment. Reliance on these cases misapprehends the function of federal habeas relief, which serves to ensure that state convictions comport with established federal law at the time a petitioner's conviction becomes final. To the extent that post-Caldwell Louisiana cases reflect state-court recognition that general Eighth Amendment principles pointed toward adoption of a Caldwell rule, or that Caldwell is congruent with pre-existing state law, they cannot serve to show that Caldwell was dictated by this Court's Eighth Amendment precedents, since courts can be expected to apply principles announced in prior Eighth Amendment decisions that are susceptible to debate among reasonable minds. Petitioner's argument that state courts would not have provided protection against misleading prosecutorial comment unless they had been compelled to do so by federal precedent and the threat of federal habeas review is premised on a skepticism of state courts that this Court declines to endorse. Pp. 233-241.
(b) Caldwell does not come within either of the Teague exceptions. The first exception has no applicability here. Petitioner's argument that the second exception should be read to include new rules of capital sentencing that preserve the accuracy and fairness of judgments looks only to the first half of the exception's definition. To qualify under Teague, a rule must not only improve the accuracy of trial; it must also be essential to the fairness of the proceeding. There would be no limit to the second exception if it were to be recast as suggested by petitioner, since almost all Eighth Amendment jurisprudence concerning capital sentencing is directed toward the enhancement of reliability or accuracy in some sense. Caldwell is a systemic rule designed as an enhancement of the accuracy of capital sentencing. However, this measure of protection against error in the context of capital sentencing was added to the already existing due process guarantee of fundamental fairness afforded by Donnelly, supra. "[T]he only defendants who need to rely on Caldwell rather than Donnelly are those who must concede that the prosecutorial argument in their case was not so harmful as to render their sentencing trial 'fundamentally unfair.' " 881 F.2d 1273, 1293. Thus, it cannot be said that Caldwell is the type of absolute prerequisite to fundamental fairness that may come within Teague's second exception. Cf., e.g., Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435. Pp. 241-245.
881 F.2d 1273, (CA5 1989) affirmed.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, in which BLACKMUN, J., joined as to Parts I, II, III, and IV, and in which STEVENS, J., joined as to Parts I, II, and III, post, p. 245.
Catherine Hancock, New Orleans, La., for petitioner.
Dorothy A. Pendergast, Gretna, La., for respondent.
Justice KENNEDY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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