676
Breyer, J., dissenting
not understand why a decision by this Court which makes it apparent that a rule is retroactive under Teague's second exception will necessarily be "more subjective and self-conscious." Ante, at 670 (concurring opinion). Of course, it will sometimes be difficult to decide whether an earlier Supreme Court case has satisfied the watershed rule's requirements. But that is not so here. In Sullivan, this Court used language that unmistakably stated that a defective reasonable-doubt instruction undermines the accuracy of a trial and deprives the defendant of a bedrock element that is essential to the fairness of a criminal proceeding. That is sufficient to make Teague's watershed exception applicable.
I would add two further points. First, nothing in the statute's purpose favors, let alone requires, the majority's conclusion. That purpose, as far as I can surmise, is to bar successive petitions when lower courts, but not the Supreme Court, have held a rule not to be "new" under Teague because dictated by their own precedent, cf. Dyer v. Calderon, 151 F. 3d 970, 993-995 (CA9) (en banc) (O'Scannlain, J., dissenting) (rejecting proposition that lower court decisions can establish rule for Teague purposes), cert. denied, 525 U. S. 1033 (1998); Clemmons v. Delo, 124 F. 3d 944, 955, n. 11 (CA8 1997) (assuming, without deciding, that only Supreme Court precedent may dictate rule so that it is not new for Teague purposes), cert. denied, 523 U. S. 1088 (1998), or when lower courts have themselves adopted new rules and then determined that the Teague retroactivity factors apply, see Smith v. Groose, 205 F. 3d 1045, 1054 (CA8) (holding that Circuit rule that prosecution's use of contradictory theories violates due process would fall within Teague's "watershed" exception), cert. denied sub nom. Gammon v. Smith, 531 U. S. 985 (2000); Sanders v. Sullivan, 900 F. 2d 601, 606-607 (CA2 1990) (same, with respect to Circuit rule that prose-cution's unknowing use of material, perjured testimony violates Constitution). Here, consistent with such a purpose, the Supreme Court has previously spoken.
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