510
Souter, J., dissenting
of retardation could claim no mitigating effect under the second Texas issue, which asks the jury to assess a defendant's future dangerousness, whereas Graham's evidence of youth and decency could claim some.2 The point under Lockett, Eddings, and Penry is that sentencing schemes must allow the sentencer to give full mitigating effect to evidence; Graham's claim that his evidence could receive only partial consideration is just as much a claim for application of the preexisting rule demanding the opportunity for full effect as was Penry's claim that his retardation could be given no effect under the second Texas special issue.
Thus, from our conclusion that the rule from which the petitioner sought to benefit in Penry was not "new," it necessarily follows that the rule petitioner Graham seeks here is not new either. Indeed, that is the conclusion reached even by respondent who concedes that "if Graham is asserting the existence of a constitutional defect that can be cured by supplemental instructions, his claim likewise is not barred." Brief for Respondent 29, n. 10.3
2 This distinction does not even apply to Graham's claim that the sentencing jury could not give full mitigating effect to the evidence of his unfortunate background. Of course, in this regard, despite their mitigating force, Penry's evidence of an abused childhood and Graham's evidence of an unfortunate background both have the same tendency to support only an affirmative answer to the future dangerousness special issue. The Court does not explain why, under its reasoning, Graham's claim concerning evidence of his background is barred by Teague v. Lane, 489 U. S. 288 (1989) (plurality opinion). See ante, at 475 (undifferentiated references to all of "Graham's evidence").
3 Respondent's only argument concerning the application of Teague is that petitioner's claim is Teague-barred if "his claim is so extensive as to constitute a facial challenge to the Texas statute." Brief for Respondent 13. In other words, "if sustaining Graham's claim would necessarily require that Jurek be overruled, it is barred by Teague." Id., at 29, n. 10. However, petitioner does not ask that Jurek v. Texas, 428 U. S. 262 (1976), be overruled. Indeed, he concedes that the Texas statute has been applied constitutionally in those cases such as Franklin v. Lynaugh, 487 U. S. 164 (1988), in which the mitigating evidence can be given "full" miti-
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