Cite as: 506 U. S. 461 (1993)
Souter, J., dissenting
on the three Texas special issues.1 I conclude they could not be, and I would reverse the sentence of death and remand for resentencing. From the Court's contrary judgment, I respectfully dissent.
I
The doctrine of Teague v. Lane, supra, that a state prisoner seeking federal habeas relief may not receive retroactive benefit of a "new rule" of law, has proven hard to apply. We have explained its crucial term a number of ways. Justice O'Connor wrote in Teague itself that "[i]n general . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent at the time the defendant's conviction became final." 489 U. S., at
1 After Texas' capital punishment statute was invalidated in Branch v. Texas, one of the cases decided with Furman v. Georgia, 408 U. S. 238 (1972), Texas enacted a new capital sentencing statute. This statute, under which petitioner Gary Graham was sentenced, provides that: "(b) [o]n conclusion of the presentation of the evidence [at the sentencing phase of a capital murder trial], the court shall submit the following issues to the jury:
"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
"(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
"(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
. . . . . "(e) If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death." Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 1981). Following our decision in Penry v. Lynaugh, 492 U. S. 302 (1989), Texas adopted a new capital sentencing procedure which is not at issue here. See Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 1992).
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