Cite as: 506 U. S. 461 (1993)
Souter, J., dissenting
able from the circumstances presented and the rule of decision sought by Graham in this case. We denied certiorari in Penry's direct appeal in 1986. Penry v. Texas, 474 U. S. 1073 (1986). The Texas Court of Criminal Appeals affirmed Graham's conviction and sentence of death in 1984, Graham v. State, No. 68,916, and Graham did not seek certiorari in this Court. In both cases, therefore, under the reasoning employed by the majority, see ante, at 467, "[t]his Court's decisions in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), were rendered before [petitioners'] conviction[s] became final." Penry, 492 U. S., at 314-315. Because Penry was "entitled to the benefit of those decisions," id., at 315, so, on a comparable claim, is Graham.
Our description of Penry's claim applies, indeed, almost precisely to Graham's claim in this case. Of Penry, we said:
"[He] does not challenge the facial validity of the Texas death penalty statute, which was upheld against an Eighth Amendment challenge in Jurek v. Texas, 428 U. S. 262 (1976). Nor does he dispute that some types of mitigating evidence can be fully considered by the sentencer in the absence of special jury instructions. See Franklin v. Lynaugh, 487 U. S. 164, 175 (1988) (plurality opinion); id., at 185-186 (O'Connor, J., concurring in judgment). Instead, [he] argues that, on the facts of this case, the jury was unable to fully consider and give effect to the mitigating evidence . . . in answering the three special issues." Ibid.
In deciding whether he sought benefit of a "new rule," we went on to say:
"Lockett underscored Jurek's recognition that the constitutionality of the Texas scheme 'turns on whether the enumerated questions allow consideration of particularized mitigating factors.' Jurek, 428 U. S., at 272. The plurality opinion in Lockett indicated that the Texas
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