478
Thomas, J., concurring
The second exception permits federal courts on collateral review to announce " 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Ibid. Whatever the precise scope of this exception, it is clearly meant to apply only to a small core of rules requiring "observance of 'those procedures that . . . are "implicit in the concept of ordered liberty." ' " Teague, supra, at 311 (quoting Mackey v. United States, 401 U. S. 667, 693 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (in turn quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937))); see also Butler v. McKellar, supra, at 416. As the plurality cautioned in Teague, "[b]ecause we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge." 489 U. S., at 313. We do not believe that denying Graham special jury instructions concerning his mitigating evidence of youth, family background, and positive character traits "seriously diminish[ed] the likelihood of obtaining an accurate determination" in his sentencing proceeding. See Butler v. McKellar, supra, at 416. Accordingly, we find the second Teague exception to be inapplicable as well.
The judgment of the Court of Appeals is therefore
Affirmed.
Justice Thomas, concurring.
By deciding this case on the basis of Teague v. Lane, 489 U. S. 288 (1989), the Court has avoided a direct reconsideration of Penry v. Lynaugh, 492 U. S. 302 (1989). I join the Court's opinion because I agree that the holding sought by Graham is not compelled by the cases upon which Penry rests and would therefore, if adopted, be a new rule for Teague purposes. I write separately, however, to make clear that I believe Penry was wrongly decided.
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