Horn v. Banks, 536 U.S. 266 (2002) (per curiam)

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on petition for writ of certiorari to the united states court of appeals for the third circuit

No. 01-1385. Decided June 17, 2002

A Pennsylvania trial court sentenced respondent to death on each of his

12 convictions of first-degree murder. The verdict form in the trial's penalty phase required, in relevant part, the jury to check a box indicating that it found unanimously either at least one aggravating circumstance and no mitigating circumstances or one or more aggravating circumstances outweighing any mitigating circumstances. The jury marked the latter box. After respondent's direct appeal was denied, this Court held that the Constitution prohibits a State from requiring jurors unanimously to agree that a particular mitigating circumstance exists before they may consider that circumstance in their sentencing determination, Mills v. Maryland, 486 U. S. 367, 374. In subsequent state postconviction proceedings, the Pennsylvania Supreme Court rejected respondent's claim that the instructions to the jury and the verdict forms in his case suggested that the mitigating circumstance findings had to be unanimous. In denying his later federal habeas petition, the District Court did not address whether Mills was retroactive, finding instead the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) review standard dispositive. The Third Circuit reversed in part, granting relief under Mills. It found that it did not need to evaluate whether Mills applied retroactively per Teague v. Lane, 489 U. S. 288, because the State Supreme Court had not ruled on retroactivity, and it found the state court's application of federal law unreasonable under Mills and Boyde v. California, 494 U. S. 370.

Held: The Third Circuit erred when it failed to perform a Teague analysis.

Whether to apply the Teague rule—that new constitutional rules of criminal procedure generally do not apply to cases that became final before the new rules were announced, 489 U. S., at 310—is a threshold question in every habeas case. A federal court may decline to apply Teague if a State does not argue it; but if the State does argue Teague, the court must apply it before considering the claim's merits. Caspari v. Bohlen, 510 U. S. 383. Here, petitioners raised the Teague issue both in the District Court and in the Third Circuit. To the extent that the latter court's opinion can be read to imply that AEDPA has changed Caspari's legal principles, none of this Court's post-AEDPA cases have

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