(Slip Opinion) OCTOBER TERM, 2004 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BRADSHAW, WARDEN v. STUMPF 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT 

No. 04–637. Argued April 19, 2005—Decided June 13, 2005 

Respondent Stumpf and his accomplice Wesley committed an armed 

robbery that left Mr. Stout wounded and Mrs. Stout dead. Stumpf 

admitted shooting Mr. Stout but has always denied killing Mrs. 

Stout. In Ohio state court proceedings, Stumpf pleaded guilty to, 

among other things, aggravated murder and one of three capital 

murder specifications charged in his indictment. This left Stumpf 

eligible for the death penalty. In a contested penalty hearing before a 

three-judge panel, Stumpf ’s principal mitigation arguments were 

that he had participated in the robbery at Wesley’s urging, that 

Wesley had killed Mrs. Stout, and that Stumpf ’s minor role in the 

murder counseled against the death sentence. The State, however, 

claimed that Stumpf had shot Mrs. Stout, and that he therefore was 

the principal offender in her murder. In the alternative, the State 

noted that even an accomplice can be sentenced to death under Ohio 

law if he acted with the specific intent to cause death, and the State 

argued that such intent could be inferred from the circumstances of 

the robbery regardless of who actually shot Mrs. Stout. The panel 

concluded that Stumpf was the principal offender and sentenced him 

to death. At Wesley’s subsequent jury trial, however, the State presented evidence that Wesley had admitted to shooting Mrs. Stout. 

But Wesley argued that the prosecutor had taken a contrary position 

in Stumpf’s trial, and Wesley was sentenced to life in prison with the 

possibility of parole. After Wesley’s trial, Stumpf moved to withdraw 

his own plea or vacate his death sentence, arguing that the evidence 

endorsed by the State in Wesley’s trial cast doubt on Stumpf ’s conviction and sentence. This time, however, the prosecutor emphasized 

other evidence confirming Stumpf as the shooter and again raised, in 

the alternative, the aider-and-abettor theory. The court denied 
2 BRADSHAW v. STUMPF 

Syllabus 

Stumpf ’s motion, and Ohio’s appellate courts affirmed. Subsequently, the Federal District Court denied Stumpf habeas relief, but 

the Sixth Circuit reversed on two grounds. First, the Sixth Circuit 

found that Stumpf had not understood that specific intent to cause 

death was a necessary element of the aggravated murder charge, and 

that his guilty plea therefore had not been knowing, voluntary, and 

intelligent. Second, the court found that the conviction and sentence 

could not stand because the State had secured convictions of both 

Stumpf and Wesley for the same crime, using inconsistent theories. 

Held: 

1. The Sixth Circuit erred in concluding that Stumpf was uninformed of the aggravated murder charge’s specific intent element. 

While a guilty plea is invalid if the defendant has not been informed 

of the crime’s elements, Stumpf ’s attorneys represented at his plea 

hearing that they had explained the elements to their client, and 

Stumpf confirmed that the representation was true. This Court has 

never held that the judge must himself explain a crime’s elements to 

the defendant. Rather, constitutional requirements may be satisfied 

where the record accurately reflects that the charge’s nature and the 

crime’s elements were explained to the defendant by his own, competent counsel. Stumpf argues that his plea was so inconsistent with 

his denial of having shot Mrs. Stout that he could only have pleaded 

guilty out of ignorance of the aggravated murder charge’s specific intent element. But that argument fails because Stumpf’s conviction 

did not require a showing that Stumpf had shot Mrs. Stout. Ohio law 

also considers aiders and abettors who act with specific intent to 

cause death liable for aggravated murder. Stumpf and Wesley entered the Stout home with guns, intending to commit armed robbery, 

and Stumpf admitted shooting Mr. Stout. Taken together, these facts 

could show that the two men had agreed to kill both Stouts, which in 

turn could make both men guilty of aggravated murder regardless of 

who shot Mrs. Stout. Stumpf ’s claim that he and his attorneys were 

confused about the relevance and timing of defenses that they 

planned to make is not supported by the record. Finally, the plea’s 

validity may not be collaterally attacked on the ground that Stumpf 

made what he now claims was a bad deal. Pp. 6–10.

2. The Sixth Circuit was also wrong to hold that prosecutorial inconsistencies between the Stumpf and Wesley cases required voiding 

Stumpf ’s guilty plea. The precise identity of the triggerman was immaterial to Stumpf ’s aggravated murder conviction, and Stumpf has 

never explained how the prosecution’s postplea use of inconsistent 

arguments could have affected the knowing, voluntary, and intelligent nature of his plea. P. 11. 

3. The prosecutor’s use of allegedly inconsistent theories may have 
Cite as: 545 U. S. ____ (2005) 3 

Syllabus 

a more direct effect on Stumpf ’s sentence, however, for it is arguable 

that the sentencing panel’s conclusion about his role was material to 

its sentencing determination. The opinion below leaves some ambiguity as to the overlap between how the lower court resolved 

Stumpf’s due process challenge to his conviction and how it resolved 

his challenge to his sentence. It is not clear whether the Court of Appeals would have found Stumpf entitled to resentencing had it not 

also considered the conviction invalid. Likewise, the parties’ briefing 

here, and the question on which this Court granted certiorari, largely 

focused on the conviction. In these circumstances, it would be premature for this Court to resolve the merits of Stumpf’s sentencing claim 

before giving the Sixth Circuit the opportunity to consider in the first 

instance the question of how the prosecutor’s conduct in the Stumpf 

and Wesley cases related to Stumpf ’s death sentence in particular. 

Pp. 11–12. 

367 F. 3d 594, reversed in part, vacated in part, and remanded. 

O’CONNOR, J., delivered the opinion for a unanimous Court. SOUTER, 

J., filed a concurring opinion in which GINSBURG, J., joined. THOMAS, J., 

filed a concurring opinion, in which SCALIA, J., joined. 
_________________ 

_________________ 

Cite as: 545 U. S. ____ (2005) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order 

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 04–637 

MARGARET BRADSHAW, WARDEN, PETITIONER v. 

JOHN DAVID STUMPF 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT 

[June 13, 2005] 

JUSTICE O’CONNOR delivered the opinion of the Court. 

This case concerns respondent John David Stumpf’s 

conviction and death sentence for the murder of Mary 

Jane Stout. In adjudicating Stumpf ’s petition for a writ of 

habeas corpus, the United States Court of Appeals for the 

Sixth Circuit granted him relief on two grounds: that his 

guilty plea was not knowing, voluntary, and intelligent, 

and that his conviction and sentence could not stand 

because the State, in a later trial of Stumpf ’s accomplice, 

pursued a theory of the case inconsistent with the theory 

it had advanced in Stumpf ’s case. We granted certiorari 

to review both holdings. 543 U. S. ___ (2005). 

I 

On May 14, 1984, Stumpf and two other men, Clyde

Daniel Wesley and Norman Leroy Edmonds, were traveling in Edmonds’ car along Interstate 70 through Guernsey 

County, Ohio. Needing money for gas, the men stopped

the car along the highway. While Edmonds waited in the 

car, Stumpf and Wesley walked to the home of Norman 

and Mary Jane Stout, about 100 yards away. Stumpf and 

Wesley, each concealing a gun, talked their way into the 
2 BRADSHAW v. STUMPF 

Opinion of the Court 

home by telling the Stouts they needed to use the phone. 

Their real object, however, was robbery: Once inside,

Stumpf held the Stouts at gunpoint, while Wesley ransacked the house. When Mr. Stout moved toward Stumpf, 

Stumpf shot him twice in the head, causing Mr. Stout to 

black out. After he regained consciousness, Mr. Stout 

heard two male voices coming from another room, and 

then four gunshots—the shots that killed his wife. Edmonds was arrested shortly afterward, and his statements

led the police to issue arrest warrants for Stumpf and 

Wesley. Stumpf, who surrendered to the police, at first 

denied any knowledge of the crimes. After he was told 

that Mr. Stout had survived, however, Stumpf admitted to 

participating in the robbery and to shooting Mr. Stumpf. 

But he claimed not to have shot Mrs. Stout, and he has 

maintained that position ever since.

The proceedings against Stumpf occurred while Wesley, 

who had been arrested in Texas, was still resisting extradition to Ohio. Stumpf was indicted for aggravated murder, attempted aggravated murder, aggravated robbery, 

and two counts of grand theft. With respect to the aggravated murder charge, the indictment listed four statutory 

“specifications”—three of them aggravating circumstances 

making Stumpf eligible for the death penalty. See App. 

117–118; Ohio Rev. Code Ann. §2929.03 (Anderson 1982).* 

The case was assigned to a three-judge panel in the Court

of Common Pleas. 

Rather than proceed to trial, however, Stumpf and the 

State worked out a plea agreement: Stumpf would plead 

guilty to aggravated murder and attempted aggravated 

murder, and the State would drop most of the other

charges; with respect to the aggravated murder charge, 

—————— 

* Unless otherwise noted, all citations to Ohio statutes refer to the 

versions of those statutes in effect in 1984, at the time of the crime and 

trial. 
Cite as: 545 U. S. ____ (2005) 3 

Opinion of the Court 

Stumpf would plead guilty to one of the three capital 

specifications, with the State dropping the other two. The 

plea was accepted after a colloquy with the presiding 

judge, and after a hearing in which the panel satisfied 

itself as to the factual basis for the plea. 

Because the capital specification to which Stumpf 

pleaded guilty left him eligible for the death penalty, a 

contested penalty hearing was held before the same threejudge panel. Stumpf ’s mitigation case was based in part 

on his difficult childhood, limited education, dependable 

work history, youth, and lack of prior serious offenses. 

Stumpf ’s principal argument, however, was that he had 

participated in the plot only at the urging and under the 

influence of Wesley, that it was Wesley who had fired the 

fatal shots at Mrs. Stout, and that Stumpf ’s assertedly 

minor role in the murder counseled against the death 

sentence. See §2929.04(B)(6) (directing the sentencer to 

consider as a potential mitigating circumstance, “[i]f the 

offender was a participant in the offense but not the principal offender, the degree of the offender’s participation in 

the offense”). The State, on the other hand, argued that 

Stumpf had indeed shot Mrs. Stout. Still, while the prosecutor claimed Stumpf ’s allegedly primary role in the 

shooting as a special reason to reject Stumpf ’s mitigation 

argument, the prosecutor also noted that Ohio law did not 

restrict the death penalty to those who commit murder by 

their own hands—an accomplice to murder could also 

receive the death penalty, so long as he acted with the 

specific intent to cause death. As a result, the State argued, Stumpf deserved death even if he had not personally 

shot Mrs. Stout, because the circumstances of the robbery 

provided a basis from which to infer Stumpf’s intent to 

cause death. The three-judge panel, agreeing with the 

State’s first contention, specifically found that Stumpf 

“was the principal offender” in the aggravated murder of 

Mrs. Stout. App. 196. Determining that the aggravating 
4 BRADSHAW v. STUMPF 

Opinion of the Court 

factors in Stumpf ’s case outweighed any mitigating factors, the panel sentenced Stumpf to death. 

Afterward, Wesley was successfully extradited to Ohio 

to stand trial. His case was tried to a jury, before the 

same judge who had presided over the panel overseeing 

Stumpf ’s proceedings, and with the same prosecutor. This 

time, however, the prosecutor had new evidence: James

Eastman, Wesley’s cellmate after his extradition, testified 

that Wesley had admitted to firing the shots that killed 

Mrs. Stout. The prosecutor introduced Eastman’s testimony in Wesley’s trial, and in his closing argument he 

argued for Wesley’s credibility and lack of motive to lie. 

The prosecutor claimed that Eastman’s testimony, combined with certain circumstantial evidence and with the 

implausibility of Wesley’s own account of events, proved 

that Wesley was the principal offender in Mrs. Stout’s 

murder—and that Wesley therefore deserved to be put to 

death. One way Wesley countered this argument was by 

noting that the prosecutor had taken a contrary position 

in Stumpf ’s trial, and that Stumpf had already been sentenced to death for the crime. Wesley also took the stand 

in his own defense, and testified that Stumpf had shot 

Mrs. Stout. In the end, the jury sentenced Wesley to life 

imprisonment with the possibility of parole after 20 years. 

After the Wesley trial, Stumpf, whose direct appeal was 

still pending in the Ohio Court of Appeals, returned to the 

Court of Common Pleas with a motion to withdraw his 

guilty plea or vacate his death sentence. Stumpf argued 

that Eastman’s testimony, and the prosecution’s endorsement of that testimony in Wesley’s trial, cast doubt upon 

Stumpf ’s conviction and sentence. The State (represented

again by the same prosecutor who had tried both Wesley’s 

case and Stumpf ’s original case) disagreed. According to 

the prosecutor, the court’s first task was to decide whether 

the Eastman testimony was sufficient to alter the court’s 

prior determination that Stumpf had been the shooter. 
Cite as: 545 U. S. ____ (2005) 5 

Opinion of the Court 

Id., at 210. Contrary to the argument he had presented in

the Wesley trial, however, the prosecutor now noted that 

Eastman’s testimony was belied by certain other evidence 

(ballistics evidence and Wesley’s testimony in his own

defense) confirming Stumpf to have been the primary 

shooter. In the alternative, the State noted as it had 

before that an aider-and-abettor theory might allow the 

death sentence to be imposed against Stumpf even if he 

had not shot Mrs. Stout. 

Although one judge speculated during oral argument

that the court’s earlier conclusion about Stumpf ’s principal role in the killing “may very well have had an effect 

upon” the prior sentencing determination, ibid., the Court 

of Common Pleas denied Stumpf ’s motion in a brief summary order without explanation. That order was appealed 

together with the original judgment in Stumpf ’s case, and 

the Ohio Court of Appeals affirmed, as did the Ohio Supreme Court. State v. Stumpf, 32 Ohio St. 3d 95, 512 

N. E. 2d 598 (1987), cert. denied, 484 U. S. 1079 (1988). 

After a subsequent request for state postconviction relief

was denied by the state courts, Stumpf filed this federal 

habeas petition in the United States District Court for the 

Southern District of Ohio in November 1995. The District 

Court denied Stumpf relief, but granted permission to 

appeal on four claims, including the two at issue here.

The United States Court of Appeals for the Sixth Circuit 

reversed, concluding that habeas relief was warranted on 

“either or both” of “two alternative grounds.” Stumpf v. 

Mitchell, 367 F. 3d 594, 596 (2004). First, the court determined that Stumpf ’s guilty plea was invalid because it 

had not been entered knowingly and intelligently. More 

precisely, the court concluded that Stumpf had pleaded 

guilty to aggravated murder without understanding that 

specific intent to cause death was a necessary element of 

the charge under Ohio law. See Ohio Rev. Code Ann. 

§§2903.01(B) and (D). Noting that Stumpf had all along 
6 BRADSHAW v. STUMPF 

Opinion of the Court 

denied shooting Mrs. Stout, and considering those denials 

inconsistent with an informed choice to plead guilty to 

aggravated murder, the Court of Appeals concluded that 

Stumpf must have entered his plea out of ignorance. 

Second, the court concluded that “Stumpf ’s due process 

rights were violated by the state’s deliberate action in 

securing convictions of both Stumpf and Wesley for the 

same crime, using inconsistent theories.” 367 F. 3d, at 

596. This violation, the court held, required setting aside 

“both Stumpf ’s plea and his sentence.” Id., at 616. One 

member of the panel dissented. 

II 

Because Stumpf filed his habeas petition before enactment of the Antiterrorism and Effective Death Penalty Act 

of 1996 (AEDPA), we review his claims under the standards of the pre-AEDPA habeas statute. See Lindh v. 

Murphy, 521 U. S. 320 (1997). Moreover, because petitioner 

has not argued that Stumpf ’s habeas claims were barred as 

requiring announcement of a new rule, we do not apply the 

rule of Teague v. Lane, 489 U. S. 288 (1989), to this case. 

See Schiro v. Farley, 510 U. S. 222, 229 (1994); Godinez v. 

Moran, 509 U. S. 389, 397, n. 8 (1993). 

A 

The Court of Appeals concluded that Stumpf ’s plea of 

guilty to aggravated murder was invalid because he was 

not aware of the specific intent element of the charge—a 

determination we find unsupportable. 

 Stumpf ’s guilty plea would indeed be invalid if he had 

not been aware of the nature of the charges against him, 

including the elements of the aggravated murder charge to 

which he pleaded guilty. A guilty plea operates as a

waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, “with sufficient awareness of the relevant circumstances and likely consequences.” 
Cite as: 545 U. S. ____ (2005) 7 

Opinion of the Court 

Brady v. United States, 397 U. S. 742, 748 (1970). Where a 

defendant pleads guilty to a crime without having been 

informed of the crime’s elements, this standard is not met 

and the plea is invalid. Henderson v. Morgan, 426 U. S. 637 

(1976). 

But the Court of Appeals erred in finding that Stumpf had 

not been properly informed before pleading guilty. In 

Stumpf ’s plea hearing, his attorneys represented on the 

record that they had explained to their client the elements 

of the aggravated murder charge; Stumpf himself then 

confirmed that this representation was true. See App.

135, 137–138. While the court taking a defendant’s plea is 

responsible for ensuring “a record adequate for any review 

that may be later sought,” Boykin v. Alabama, 395 U. S. 

238, 244 (1969), we have never held that the judge must 

himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record 

accurately reflects that the nature of the charge and the 

elements of the crime were explained to the defendant by 

his own, competent counsel. Cf. Henderson, supra, at 647 

(granting relief to a defendant unaware of the elements of 

his crime, but distinguishing that case from others where 

“the record contains either an explanation of the charge by 

the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the 

accused”). Where a defendant is represented by competent 

counsel, the court usually may rely on that counsel’s assurance that the defendant has been properly informed of the 

nature and elements of the charge to which he is pleading 

guilty. 

Seeking to counter this natural inference, Stumpf argues, 

in essence, that his choice to plead guilty to the aggravated murder charge was so inconsistent with his denial of 

having shot the victim that he could only have pleaded 

guilty out of ignorance of the charge’s specific intent re-
8 BRADSHAW v. STUMPF 

Opinion of the Court 

quirement. But Stumpf ’s asserted inconsistency is illusory. The aggravated murder charge’s intent element did 

not require any showing that Stumpf had himself shot 

Mrs. Stout. Rather, Ohio law considers aiders and abettors equally in violation of the aggravated murder statute, 

so long as the aiding and abetting is done with the specific 

intent to cause death. See In re Washington, 81 Ohio St. 

3d 337, 691 N. E. 2d 285 (1998); State v. Scott, 61 Ohio St. 

2d 155, 165, 400 N. E. 2d 375, 382 (1980). As a result, 

Stumpf ’s steadfast assertion that he had not shot Mrs. 

Stout would not necessarily have precluded him from 

admitting his specific intent under the statute. 

That is particularly so given the other evidence in this 

case. Stumpf and Wesley had gone to the Stouts’ home 

together, carrying guns and intending to commit armed 

robbery. Stumpf, by his own admission, shot Mr. Stout in 

the head at close range. Taken together, these facts could 

show that Wesley and Stumpf had together agreed to kill 

both of the Stouts in order to leave no witnesses to the 

crime. And that, in turn, could make both men guilty of 

aggravated murder regardless of who actually killed Mrs. 

Stout. See ibid., at 165, 400 N. E. 2d, at 382. 

Stumpf also points to aspects of the plea hearing transcript which he says show that both he and his attorneys

were confused about the relevance and timing of defenses

Stumpf and his attorneys had planned to make. First, at 

one point during the hearing, the presiding judge stated 

that by pleading guilty Stumpf would waive his trial 

rights and his right to testify in his own behalf. Stumpf’s 

attorney answered that Stumpf “was going to respond but 

we have informed him that there is, after the plea, a hearing or trial relative to the underlying facts so that he is of 

the belief that there will be a presentation of evidence.” 

App. 140. The presiding judge responded that “[o]f course 

in the sentencing portion of this trial you do have those 

rights to speak in your own behalf [and] to present evi-
Cite as: 545 U. S. ____ (2005) 9 

Opinion of the Court 

dence and testimony on your own behalf.” Ibid. A few 

moments later, there was another exchange along similar 

lines, after the judge asked Stumpf whether he was “in 

fact guilty of” the aggravated murder charge and its capital specification: 

“[DEFENSE COUNSEL]: . . . Your Honor, the defendant has asked me to explain his answer. His answer 

is yes. He will recite that with obviously his understanding of his right to present evidence at a later 

time relative to his conduct, but he’ll respond to that. 

“JUDGE HENDERSON: At no time am I implying 

that the defendant will not have the right to present 

evidence in [the] mitigation hearing . . . . And I’m going to ask that the defendant, himself, respond to the 

question that I asked with that understanding that he 

has the right to present evidence in mitigation. I’m 

going to ask the defendant if he is in fact guilty of the 

charge set forth in Count one, including specification 

one . . . ? 

“THE DEFENDANT: Yes, sir.” Id., at 142. 

Reviewing this exchange, the Court of Appeals concluded 

that Stumpf “obviously . . . was reiterating his desire to

challenge the [S]tate’s account of his actions”—that is, to 

show that he did not intend to kill Mrs. Stout. 367 F. 3d, 

at 607. But the desire to contest the State’s version of 

events would not necessarily entail the desire to contest 

the aggravated murder charge or any of its elements. 

Rather, Stumpf ’s desire to put on evidence “relative to the 

underlying facts” and “relative to his conduct” could 

equally have meant that Stumpf was eager to make his 

mitigation case—an interpretation bolstered by the attorney’s and Stumpf ’s approving answers after the presiding 

judge confirmed that the defense could put on evidence “in 

mitigation” and in “the sentencing” phase. While 

Stumpf ’s mitigation case was premised on the argument 
10 BRADSHAW v. STUMPF 

Opinion of the Court 

that Stumpf had not shot Mrs. Stout, that was fully consistent with his plea of guilty to aggravated murder. See 

supra, at 7–8. 

Finally, Stumpf, like the Court of Appeals, relies on the 

perception that he obtained a bad bargain by his plea— 

that the State’s dropping several non-murder charges and 

two of the three capital murder specifications was a bad 

tradeoff for Stumpf ’s guilty plea. But a plea’s validity may 

not be collaterally attacked merely because the defendant 

made what turned out, in retrospect, to be a poor deal. 

See Brady, 397 U. S., at 757; Mabry v. Johnson, 467 U. S. 

504, 508 (1984). Rather, the shortcomings of the deal 

Stumpf obtained cast doubt on the validity of his plea only 

if they show either that he made the unfavorable plea on 

the constitutionally defective advice of counsel, see Tollett 

v. Henderson, 411 U. S. 258, 267 (1973), or that he could not 

have understood the terms of the bargain he and Ohio 

agreed to. Though Stumpf did bring an independent claim 

asserting ineffective assistance of counsel, that claim is 

not before us in this case. And in evaluating the validity

of Stumpf ’s plea, we are reluctant to accord much weight 

to his post hoc reevaluation of the wisdom of the bargain. 

Stumpf pleaded guilty knowing that the State had copious 

evidence against him, including the testimony of Mr. 

Stout; the plea eliminated two of the three capital specifications the State could rely on in seeking the death penalty; and the plea allowed Stumpf to assert his acceptance 

of responsibility as an argument in mitigation. Under 

these circumstances, the plea may well have been a knowing, voluntary, and intelligent reaction to a litigation

situation that was difficult, to say the least. The Court of 

Appeals erred in concluding that Stumpf was uninformed 

about the nature of the charge he pleaded guilty to, and 

we reverse that portion of the judgment below. 
Cite as: 545 U. S. ____ (2005) 11 

Opinion of the Court 

B 

The Court of Appeals was also wrong to hold that prosecutorial inconsistencies between the Stumpf and Wesley 

cases required voiding Stumpf ’s guilty plea. Stumpf ’s 

assertions of inconsistency relate entirely to the prosecutor’s arguments about which of the two men, Wesley or 

Stumpf, shot Mrs. Stout. For the reasons given above, see 

supra, at 7–8, the precise identity of the triggerman was 

immaterial to Stumpf’s conviction for aggravated murder. 

Moreover, Stumpf has never provided an explanation of 

how the prosecution’s postplea use of inconsistent arguments could have affected the knowing, voluntary, and 

intelligent nature of his plea. 

The prosecutor’s use of allegedly inconsistent theories 

may have a more direct effect on Stumpf ’s sentence, however, for it is at least arguable that the sentencing panel’s 

conclusion about Stumpf ’s principal role in the offense was 

material to its sentencing determination. The opinion 

below leaves some ambiguity as to the overlap between 

how the lower court resolved Stumpf ’s due process challenge to his conviction, and how it resolved Stumpf ’s 

challenge to his sentence. It is not clear whether the 

Court of Appeals would have concluded that Stumpf was 

entitled to resentencing had the court not also considered 

the conviction invalid. Likewise, the parties’ briefing to

this Court, and the question on which we granted certiorari, largely focused on the lower court’s determination 

about Stumpf’s conviction. See, e.g., Pet. for Cert. ii (requesting review of Stumpf ’s conviction, not sentence); 

Reply Brief for Petitioner 3 (challenge to Court of Appeals’ 

decision is focused on issue of conviction); Brief for Respondent 15, n. 3 (“arguments regarding Stumpf ’s death 

sentence are not before this Court”). In these circumstances, it would be premature for this Court to resolve

the merits of Stumpf ’s sentencing claim, and we therefore 

express no opinion on whether the prosecutor’s actions 
12 BRADSHAW v. STUMPF 

Opinion of the Court 

amounted to a due process violation, or whether any such 

violation would have been prejudicial. The Court of Appeals should have the opportunity to consider, in the first 

instance, the question of how Eastman’s testimony and 

the prosecutor’s conduct in the Stumpf and Wesley cases 

relate to Stumpf ’s death sentence in particular. Accordingly, we vacate the portion of the judgment below relating to Stumpf ’s prosecutorial inconsistency claim, and we 

remand the case for further proceedings consistent with 

this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 545 U. S. ____ (2005) 1 

SOUTER, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 04–637 

MARGARET BRADSHAW, WARDEN, PETITIONER v. 

JOHN DAVID STUMPF 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT 

[June 13, 2005] 

JUSTICE SOUTER, joined by JUSTICE GINSBURG, concurring. 

I join the opinion of the Court and add this word to 

explain the issue that I understand we are remanding for

further consideration. As the Court notes in its opinion, 

although respondent John Stumpf challenged both his 

conviction and his death sentence, his attack on the sentence was not always distinct from the issue raised about 

the conviction. 

I understand Stumpf to claim that it violates the basic 

due process standard, barring fundamentally unfair procedure, to allow his death sentence to stand in the aftermath of three positions taken by the State: (1) at Stumpf’s 

sentencing hearing; (2) at the trial of Stumpf ’s codefendant, Clyde Wesley; and (3) in response to Stumpf ’s motion to withdraw his guilty plea in light of the State’s 

position at the Wesley trial. At the hearing on Stumpf’s 

sentence, the State argued that he was the triggerman, 

and it urged consideration of that fact as a reason to impose a death sentence. App. 186, 188–189. The trial court 

found that Stumpf had pulled the trigger and did sentence 

him to death, though it did not state that finding Stumpf 

to be the shooter was dispositive in determining the sentence. App. to Pet. for Cert. 219a. After the sentencing

proceeding was over, the State tried the codefendant, 
2 BRADSHAW v. STUMPF 

SOUTER, J., concurring 

Wesley, and on the basis of testimony from a new witness 

argued that Wesley was in fact the triggerman, App. 282, 

and should be sentenced to death. The new witness was 

apparently unconvincing to the jury, which in any event 

was informed that Stumpf had already been sentenced to 

death for the crime; the jury rejected the specification that 

named Wesley as the triggerman, and it recommended a 

sentence of life, not death. Stumpf then challenged his 

death sentence (along with his conviction) on the basis of 

the prosecution’s position in the Wesley case. In response, 

the State did not repudiate the position it had taken in the 

codefendant’s case, or explain that it had made a mistake 

there. Instead, it merely dismissed the testimony of the 

witness it had vouched for at Wesley’s trial, id., at 125, 

and maintained that Stumpf ’s death sentence should 

stand for some or all of the reasons it originally argued for 

its imposition. At the end of the day, the State was on 

record as maintaining that Stumpf and Wesley should 

both be executed on the ground that each was the triggerman, when it was undisputed that only one of them could 

have been. 

 Stumpf ’s claim as I understand it is not a challenge to 

the evidentiary basis for arguing for the death penalty in 

either case; nor is it a claim that the prosecution deliberately deceived or attempted to deceive either trial court, as 

in Mooney v. Holohan, 294 U. S. 103 (1935) (per curiam); 

nor does it implicate the rule that inconsistent jury verdicts may be enforced, United States v. Powell, 469 U. S. 

57 (1984); Dunn v. United States, 284 U. S. 390 (1932). As 

I see it, Stumpf ’s argument is simply that a death sentence may not be allowed to stand when it was imposed in 

response to a factual claim that the State necessarily 

contradicted in subsequently arguing for a death sentence 

in the case of a codefendant. Stumpf’s position was anticipated by JUSTICE STEVENS’s observation 10 years ago that

“serious questions are raised when the sovereign itself 
Cite as: 545 U. S. ____ (2005) 3 

SOUTER, J., concurring 

takes inconsistent positions in two separate criminal 

proceedings against two of its citizens,” and that “the 

heightened need for reliability in capital cases only underscores the gravity of those questions . . . .” Jacobs v. Scott, 

513 U. S. 1067, 1070 (1995) (citation and internal quotation marks omitted). JUSTICE STEVENS’s statement in 

turn echoed the more general one expressed by Justice 

Sutherland in Berger v. United States, 295 U. S. 78, 88 

(1935), that the State’s interest in winning some point in a 

given case is transcended by its interest “that justice shall 

be done.” Ultimately, Stumpf ’s argument appears to be 

that sustaining a death sentence in circumstances like 

those here results in a sentencing system that invites the 

death penalty “to be . . . wantonly and . . . freakishly imposed.” Lewis v. Jeffers, 497 U. S. 764, 774 (1990) (quoting 

Gregg v. Georgia, 428 U. S. 153, 188 (1976) (joint opinion 

of Stewart, Powell, and STEVENS, JJ.) (internal quotation 

marks omitted)). 

If a due process violation is found in the State’s maintenance of such inconsistent positions, there will be remedial questions. May the death sentence stand if the State 

declines to repudiate its inconsistent position in the codefendant’s case? Would it be sufficient simply to reexamine 

the original sentence and if so, which party should have 

the burden of persuasion? If more would be required, 

would a de novo sentencing hearing suffice? 
_________________ 

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Cite as: 545 U. S. ____ (2005) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 04–637 

MARGARET BRADSHAW, WARDEN, PETITIONER v. 

JOHN DAVID STUMPF 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT 

[June 13, 2005] 

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

concurring. 

I join the Court’s opinion. As the Court notes, the State 

has not argued that Teague v. Lane, 489 U. S. 288 (1989), 

forecloses Stumpf’s claim that the prosecution’s presentation of inconsistent theories violated his right to due process. Ante, at 6. With certain narrow exceptions, Teague 

precludes federal courts from granting habeas petitioners 

relief on the basis of “new” rules of constitutional law 

established after their convictions become final. 489 U. S., 

at 310 (plurality opinion). This Court has never hinted, 

much less held, that the Due Process Clause prevents a 

State from prosecuting defendants based on inconsistent 

theories. Moreover, it is “[a] threshold question in every 

habeas case . . . whether the court is obligated to apply the 

Teague rule to the defendant’s claim,” and “if the State 

does argue that the defendant seeks the benefit of a new 

rule of constitutional law, the court must apply Teague 

before considering the merits of the claim.” Horn v. 

Banks, 536 U. S. 266, 271 (2002) (per curiam) (internal 

quotation marks omitted). The State also has not argued 

that Stumpf procedurally defaulted his due process claim, 

even though it appears that Stumpf never presented this 

argument to the Ohio courts. Stumpf did not even raise 
2 BRADSHAW v. STUMPF 

THOMAS, J., concurring 

the inconsistent-theories claim in his first federal habeas 

filings. See App. to Pet. for Cert. 134a–140a. Instead, the 

District Court raised the issue for Stumpf sua sponte, and 

ordered supplemental briefing on the point. See App. 97– 

98. The Court’s opinion does not preclude the State from 

advancing either of these procedural defenses on remand 

in support of Stumpf’s death sentence. 

Moreover, I agree with the Court that “Stumpf has never 

provided an explanation of how the prosecution’s postplea

use of inconsistent arguments could have affected the 

knowing, voluntary, and intelligent nature of his plea.” 

Ante, at 11. Similar reasoning applies to Stumpf ’s sentence. Stumpf equally has never explained how the prosecution’s use of postsentence inconsistent arguments— 

which were based on evidence unavailable until after 

Stumpf was sentenced—could have affected the reliability 

or procedural fairness of his death sentence. At most, the 

evidence and purportedly inconsistent theory presented at 

Wesley’s trial would constitute newly discovered evidence 

casting doubt on the reliability of Stumpf ’s death sentence, 

a sort of claim that our precedents and this Nation’s traditions have long foreclosed, see Herrera v. Collins, 506 U. S. 

390, 408–417 (1993); id., at 427–428 (SCALIA, J., concurring). The Bill of Rights guarantees vigorous adversarial 

testing of guilt and innocence and conviction only by proof 

beyond a reasonable doubt. These guarantees are more

than sufficient to deter the State from taking inconsistent 

positions; a prosecutor who argues inconsistently risks 

undermining his case, for opposing counsel will bring the

conflict to the factfinder’s attention. See ante, at 2 

(SOUTER, J., concurring) (noting that Wesley’s jury was 

informed that Stumpf had already been sentenced to 

death for the crime).