52
Thomas, J., concurring
plained, the concurring justices who also voted to affirm petitioner's sentence did not perform a curative reweighing, while the dissenter voted to reverse. Therefore petitioner's sentence is invalid, whether or not the principal opinion properly relied upon the "especially heinous, cruel or depraved" factor.
III
Petitioner's death sentence was tainted by Eighth Amendment error when the sentencing judge gave weight to an unconstitutionally vague aggravating factor. The Supreme Court of Arizona did not cure this error, because the two justices who concurred in affirming the sentence did not actually perform a new sentencing calculus. Thus the sentence, as it stands, violates the Eighth Amendment.
We reverse the judgment of the Court of Appeals and remand with instructions to return the case to the District Court to enter an order granting the petition for a writ of habeas corpus unless the State of Arizona within a reasonable period of time either corrects the constitutional error in petitioner's death sentence or vacates the sentence and imposes a lesser sentence consistent with law.
It is so ordered.
Justice Thomas, concurring.
The Court holds that the concurring Arizona Supreme Court justices violated the rule of Clemons v. Mississippi, 494 U. S. 738 (1990), by failing to reweigh aggravating and mitigating circumstances after concluding that only two of the three aggravating circumstances found by the trial court were present in this case. Respondents do not claim that this rule is a new one for purposes of Teague v. Lane, 489 U. S. 288 (1989), and that it is consequently unavailable to a habeas petitioner. The reason, presumably, is that a Teague defense is foreclosed by Stringer v. Black, 503 U. S. 222 (1992), which held that "there was no arguable basis" in Feb-
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