Stringer v. Black, 503 U.S. 222, 26 (1992)

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Cite as: 503 U. S. 222 (1992)

Souter, J., dissenting

circumstance, nowhere do the opinions state that the State Supreme Court's mandated proportionality review would not satisfy the required constitutional minimum. See Proffitt, supra, at 258 ( joint opinion of Stewart, Powell, and Stevens, JJ.) ("The Supreme Court of Florida reviews each death sentence to ensure that similar results are reached in similar cases"). Mississippi law requires just such review. See ante, at 226.

In sum, after Barclay, a jurist mindful of the Stephens caveat could reasonably have assumed that weighing one invalid aggravating circumstance along with one or more valid ones need not be treated as significant enough to amount to constitutional error in a State that at least provided appellate review for proportionality. That is dispositive under Teague: a reasonable reading of Barclay bars the conclusion that the result in Cartwright and Clemons was dictated by the cases on our books in 1985.

The Fifth Circuit, indeed, held as recently as 1988 that the rule in Stephens applied to a weighing State. See Stringer v. Jackson, 862 F. 2d 1108, 1115 (1988); Edwards v. Scroggy, 849 F. 2d 204, 211 (1988).5 The conflict between its view and that of the Tenth Circuit, see Cartwright v. Maynard, 822 F. 2d 1477, 1480 (1987) (en banc), is itself evidence that it was not unreasonable to believe in 1985 that Stephens would govern the result in this case. See Butler v. McKellar, 494 U. S., at 415. Nor, in light of my analysis, can the Fifth Circuit's opinion be dismissed as having "no arguable basis to support" the view expressed, ante, at 231.

III

In sum, I do not think that precedent in 1985 dictated the rule that weighing a vague aggravating circumstance neces-5 This was after we announced Cartwright. The Fifth Circuit distinguished that case in the same way the Supreme Court of Mississippi distinguished Cartwright in Clemons. See Stringer, 862 F. 2d, at 1113; Edwards, 849 F. 2d, at 211, n. 7.

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