Delo v. Lashley, 507 U.S. 272, 5 (1993) (per curiam)

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276

DELO v. LASHLEY

Per Curiam

Walton v. Arizona, 497 U. S. 639, 650 (1990) (plurality opinion) (quoting Lockett, supra, at 609, n. 16); see also 497 U. S., at 669-673 (Scalia, J., concurring in part and concurring in judgment) (rejecting Lockett). In Walton we rejected a challenge to a state statute that imposed on capital defendants the burden of establishing the existence of mitigating circumstances by a preponderance of the evidence—a higher evidentiary standard, we note, than Missouri has adopted. Discerning no "constitutional imperative . . . that would require the [sentencer] to consider the mitigating circumstances claimed by a defendant unless the State negated them," 497 U. S., at 650, we concluded that "[s]o long as a State's method of allocating the burdens of proof does not lessen the State's burden . . . to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency," ibid.

Even prior to Walton, other lower courts rejected arguments similar to Lashley's. For example, in State v. Full-wood, 323 N. C. 371, 373 S. E. 2d 518 (1988), vacated and remanded on other grounds, 494 U. S. 1022 (1990), the court held that the trial judge did not err by refusing to submit to the jury a "no significant history of prior criminal activity" instruction where neither the defendant nor the State introduced evidence to support it. 323 N. C., at 394, 373 S. E. 2d, at 532; see also Hutchins v. Garrison, 724 F. 2d 1425, 1436- 1437 (CA4 1983) (where defendant did not request a criminal history mitigating instruction and the record did not support it, any error resulting from failure to give the instruction was an error of state law only), cert. denied, 464 U. S. 1065 (1984). In DeLuna v. Lynaugh, 890 F. 2d 720 (1989), the Fifth Circuit held that a capital defendant was not entitled to a mitigating instruction under Penry because he had made a "tactical decision" not to introduce supporting evidence that would have "opened the door to the introduction in evi-

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