384
Syllabus
and application of a new rule in violation of Teague and subsequent cases. Pp. 390-396. (a) Under those precedents, a court must proceed in three steps: (1) it must ascertain the date on which the conviction and sentence became final for Teague purposes; (2) it must determine whether a state court considering the defendant's claim on that date would have felt compelled by existing precedent to conclude that the rule sought was required by the Constitution; and (3), even if it determines that the defendant seeks the benefit of a new rule, it must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle. P. 390. (b) Respondent's conviction and sentence became final for purposes of retroactivity analysis on January 2, 1986, the date on which the 90-day period for filing a certiorari petition elapsed following exhaustion of the availability of direct appeal to the state courts. See Griffith v. Kentucky, 479 U. S. 314, 321, n. 6. Pp. 390-391. (c) The Federal Court of Appeals announced a new rule in this case. A reasonable jurist reviewing this Court's precedents as of January 2, 1986, would not have considered the application of the Double Jeopardy Clause to a noncapital sentencing proceeding to be dictated by precedent. At that time, the Court had not so applied the Clause, cf., e. g., United States v. DiFrancesco, 449 U. S. 117, 133-135; Bullington, supra, and Arizona v. Rumsey, 467 U. S. 203, distinguished, and indeed several of the Court's decisions pointed in the opposite direction, see, e. g., Strickland v. Washington, 466 U. S. 668. Moreover, two Federal Courts of Appeals and several state courts had reached conflicting holdings on the issue. Because that conflict concerned a development in the law over which reasonable jurists could disagree, Sawyer v. Smith, 497 U. S. 227, 234, the Court of Appeals erred in resolving it in respondent's favor. To the limited extent this Court's cases decided subsequent to January 2, 1986, have any relevance to the Teague analysis, they are entirely consistent with the foregoing new rule determination. Pp. 391-396. (d) Neither of the two narrow exceptions to the nonretroactivity principle applies in this case. First, imposing a double jeopardy bar here would not place respondent's conduct beyond the power of the criminal law-making authority, since he is still subject to imprisonment on each of his robbery convictions, regardless of whether he is sentenced as a persistent offender. Second, applying the Double Jeopardy Clause in these circumstances would not constitute a watershed criminal rule, since persistent-offender status is a fact objectively ascertainable on the basis of readily available evidence, and subjecting a defendant to a second proceeding at which the State has the opportunity to show the req-
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