50
Opinion of the Court
As to the two justices who joined the principal opinion in Richmond II, Chief Justice Holohan and Justice Hays, petitioner argues that these justices erred by relying upon the (F)(6) "especially heinous, cruel or depraved" factor. Specifically, petitioner contends that the justices refrained from determining that he drove the car over Crummett; that in any case the record before the Supreme Court of Arizona did not suffice to support such a determination; and that the (F)(6) factor would not apply even if he were the driver, unless he knew when he drove the car over Crummett the second time that Crummett was already dead. Respondents dispute each of these points, arguing that Chief Justice Holohan and Justice Hays did determine petitioner to be the driver; that the sentencing judge had made an implicit finding on this score; and that the (F)(6) factor was applicable to the driver, whether or not he knew Crummett to be dead. The parties do agree that a state appellate court can cure a death sentence of constitutional error even where only a minority of the court relies upon a particular aggravating factor, as in Richmond II, if such reliance is otherwise legitimate. See Brief for Respondents 8-33; Reply Brief for Petitioner 3. We assume without deciding that the parties are correct on this point. Instead, the dispute here is simply whether the justices who relied upon the (F)(6) factor in Richmond II ought to have done so.
Of course, the question to be decided by a federal court on petition for habeas corpus is not whether the state sentencer committed state-law error in relying upon an adequately narrowed aggravating factor. See Lewis v. Jeffers, 497 U. S., at 780. Rather, the federal, constitutional question is whether such reliance is "so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation." Ibid. Gretzler, the narrowing construction of Arizona's (F)(6) factor, reads as follows:
"[T]he statutory concepts of heinous and depraved involve a killer's vile state of mind at the time of the mur-
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