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A. New Rules.
Mills v. Maryland, 486 U. S. 367 (1988) involved a standard jury instruction that had been created by a rule of court, promulgated by the highest court of a state on recommendation of its rules committee, used in that state for nearly a decade, and upheld 6-1 by the state high court. Mills v. State, 527 A. 2d 3 (Md. 1987). Four Justices of this Court also believed the instruction was constitutional. See 486 U. S., at 390 (Rehnquist, C. J., dissenting). Yet the Court of Appeals for the Third Circuit in the present case held that "no reasonable jurist could have reached a different result" than did the bare majority in Mills. See Banks v. Horn, 316 F. 3d 228, 239 (CA3 2003).
The rule of Teague v. Lane, 489 U. S. 288 (1989) requires that for Mills to be an "old rule," "the unlawfulness of [the instruction must have been] apparent to all reasonable jurists" before the Mills decision. Lambrix v. Singletary, 520 U. S. 518, 527-528 (1997) (emphasis added). The Court of Appeals majority in the present case held that a different result in Mills would not only have been " 'illogical' or 'grudging' " but "completely untenable." 316 F. 3d, at 242-243. In other words, the committee that drafted the Maryland rule, the court that adopted it, six judges of the Maryland Court of Appeals, and four Justices of this Court were all unreasonable. Such a holding would be worthy of this Court's review by itself. It is even more so in light of the conflicting authorities noted in the petition for certiorari. See Pet. for Cert., part I.
Teague is one of the most important doctrines of this Court's recent jurisprudence, navigating the difficult and murky channel between enforcement of the Bill of Rights and respect for both federalism and the finality of criminal judgments. It has been the subject of numerous decisions of this Court. Teague remains important after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 for the reasons stated in Part I-B, infra, at 11. To find this doctrine so badly misunderstood and misapplied this late in its development is surprising and, frankly, suspicious. To hold that a rule is not new when it so plainly meets the definition repeated and explained in so many of this Court's decisions smacks of the kind of deliberate evasion that we last saw in the heat of the civil rights struggle of the 1950s and 1960s. Cf. NAACP v. Alabama ex rel. Flowers, 377 U. S. 288, 297 (1964).
Nonetheless, if we generously attribute the Court of Appeals' decision in the present case to misunderstanding rather than evasion, it is apparent that further instruction is needed. Indeed, the Court of Appeals' opinion itself seems to invite clarification, noting Teague's now 14-year-old statement that "it is 'often difficult to determine' whether a case announces a new rule . . . ." 316 F. 3d, at 233 (quoting 489 U. S., at 301). That task should be considerably easier today, with the numerous examples of what are and are not new rules, just as the law of "probable cause" has acquired content through appellate application, even though it is not governed by rigid rules. See Ornelas v. United States, 517 U. S. 690, 697 (1996).
The opinion in the present case comes close to a catalog of all the ways this Court has held that federal courts should not conduct the Teague "new rule" inquiry. They include (1) defining "rules" at an excessive level of generality; (2) holding that an outcome is "dictated" because it implements policies of earlier cases, while ignoring countervailing indications of other cases; (3) an inadequate survey of the legal landscape, especially ignoring state court opinions; (4) relying on nonconstitutional decisions governing only federal criminal cases, which do not impose those rules on the states; (5) disregarding the close division in the rule-making case itself; and (6) giving no weight to settled practice.
The most common error in Teague analysis is defining the pre-existing rule at an excessive level of generality. Habeas petitioners seeking to avoid a Teague bar routinely assert that the particular rule they seek to invoke is merely an application of some earlier, sweeping principle. Sawyer v. Smith, 497 U. S. 227, 236 (1990) expressly rejected this approach. "But the test would be meaningless if applied at this level of generality."
The Court of Appeals in the present case held that "Mills represented merely an application of the well established constitutional rule that the Eighth Amendment prohibits all barriers to the sentencer's consideration of any and all mitigation evidence . . . ." 316 F. 3d, at 235 (emphasis added). This statement is excessively broad in two respects. First, the established Eighth Amendment rule was not that broad in 1987, and it is not that broad today. Second, the specific holding of Mills that Maryland's standard instruction violated the rule of Lockett v. Ohio, 438 U. S. 586 (1978) was by no means beyond reasonable debate.
On the first point, it simply is not and never has been true that the Eighth Amendment prohibits all barriers. Many states, including Maryland, require the defendant to prove the existence of a mitigating circumstance by a preponderance of the evidence before it may be considered, and this requirement is valid. See McKoy v. North Carolina, 494 U. S. 433, 444 (1990) (White, J., concurring); id., at 456 (Kennedy, J., concurring in the judgment). Many states apply their standard rules of evidence to the penalty phase, excluding hearsay, unproven scientific claims, and other unreliable evidence. See, e.g., People v. Phillips, 22 Cal. 4th 226, 237-238, 991 P. 2d 145, 152 (2000). While there are some constitutional limits on exclusion of defense evidence in the penalty phase, see, e.g., Green v. Georgia, 442 U. S. 95, 97 (1979) (per curiam), this Court has not yet construed the Eighth Amendment to require admission of third-hand gossip or phrenology.
Sawyer would seem to be clear enough on its face that the newness of rules is determined at the specific, nuts-and-bolts level and not in sweeping generalities. The opinion in the present case, however, demonstrates that the point requires reinforcement.
Closely related to the excessive generality problem is the Court of Appeals' evasion of the oft-repeated plain language of Teague that a rule is new unless "dictated by precedent existing at the time . . . ." 489 U. S., at 301 (emphasis in original). The Court of Appeals opined that if this requirement were applied "narrowly," that is, if it means what it plainly says, it would "unrealistically require courts to have anticipated all future scenarios in order for later cases to not announce a new rule." 316 F. 3d, at 240. This is hyperbole. No one claims that an old rule must catalog every possibility. A novel but outrageous practice can be a clear violation of established law. See United States v. Lanier, 520 U. S. 259, 271 (1997). What "dictated by precedent" requires is that a judge of a lower court cannot honestly rule the other way without violating the requirements of stare decisis, however strongly he or she may disagree with the decision as a matter of policy.
The Court of Appeals' majority's discomfort with "dictated" and its substitution of a different standard is remarkably similar to the argument rejected in Butler v. McKellar, 494 U. S. 407, 415 (1990).
"But the fact that a court says that its decision is . . . 'controlled' by a prior decision, is not conclusive for purposes of deciding whether the current decision is a 'new rule' under Teague. Courts frequently view their decisions as being 'controlled' or 'governed' by prior opinions even when aware of reasonable contrary conclusions reached by other courts."
It was quite debatable at the time of Mills whether a requirement of jury unanimity constituted a "barrier" to consideration in violation of Lockett or a regulation of the method by which the jury would "consider" the evidence. Indeed, two years after Mills, this Court relied on the "what versus how" distinction to hold that a habeas petitioner was seeking to create a new rule when he wanted juries to be able to consider sympathy evoked by his mitigating evidence. "There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider . . . and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision." Saffle v. Parks, 494 U. S. 484, 490 (1990). Johnson v. Texas, 509 U. S. 350, 372-373 (1993) (quoting Saffle), a direct appeal case decided without Teague constraints, confirms that the what/how distinction is alive and well and follows from Jurek v. Texas, 428 U. S. 262 (1976).
Before Mills, a reasonable jurist could conclude that a rule on the jury's vote on mitigating circumstances fell into the "how" category, just as the rule on burden of proof does to this day. A jury that deliberates and votes on whether a factor has been proven has "considered" that factor in the ordinary sense of the word. If a State can "structure the consideration," Johnson, 509 U. S., at 373, can it not require that all jurors come to an agreement?
The Third Circuit explains its view that the what/how argument "[w]hile perhaps viscerally appealing . . . does not withstand scrutiny." 316 F. 3d, at 245. In other words, it fails on the merits. Perhaps so, but that is not the question. A reasonable jurist in 1987 could have understood Jurek to hold that states have substantial authority to structure how juries consider mitigating factors, as Johnson confirms it did, that this holding of Jurek survives Lockett, as Johnson also confirms, and that jury voting requirements came within this authority. The newness of Mills cannot be evaluated by looking only at Lockett and ignoring the "tension" between it and Furman/Jurek. See Tuilaepa v. California, 512 U. S. 967, 973 (1994).
The Court of Appeals in the present case limited its survey of the legal landscape to this Court's precedents. 316 F. 3d, at 235, and n. 6. In Caspari v. Bohlen, 510 U. S. 383, 394-395 (1994), this Court admonished quite clearly that it is error to look only at federal cases and ignore the state court decisions. It is even greater error, in most cases, to look only at this Court's precedents. Of course, if there were a Supreme Court precedent squarely on point, there would be no need to look further. However, in 1987 there was not a single case on the question of what to do when a jury is divided on a finding of a mitigating circumstance. All the relevant Supreme Court precedents were at a higher level of generality. The relevant pre-Mills legal landscape therefore included state court decisions of the questions of whether the Lockett rule affected jury voting on the circumstances and, if so, whether instructions like the Maryland form violated the rule.
An adequate survey, at the very minimum, would have to include the Maryland decision in Mills itself, Mills v. State, 527 A. 2d 3, 15 (Md. 1987), and the North Carolina decisions in State v. Kirkley, 302 S. E. 2d 144, 156-157 (N.C. 1983), and State v. Brown, 358 S. E. 2d 1, 25 (N.C. 1987) (reaffirming Kirkley). With two state supreme courts rejecting Mills-type claims and no cases accepting such claims, despite established practice in at least two states, (2) the legal landscape as of 1987 indicates strongly that Mills was a new rule.
Only two circuits have held that Mills was not a new rule: the Third Circuit in the present case and the Sixth Circuit in Gall v. Parker, 231 F. 3d 265 (CA6 2000). Both decisions rely on Andres v. United States, 333 U. S. 740 (1948). Aside from the fact that Andres involved the final penalty decision and not a preliminary question of mitigating factors, there is a glaring error in this reliance, which this Court quite specifically addressed in Sawyer v. Smith, supra.
In that case, the petitioner maintained that "Caldwell [v. Mississippi, 472 U. S. 320 (1985)] applied an old rule" because many state courts had adopted similar nonconstitutional rules. 497 U. S., at 240. The Sawyer Court held that the fact that a constitutional rule "is congruent with pre-existing state law" does not prevent it from being a new rule. Id., at 240-241. Similarly, a rule established by this Court for federal courts under its supervisory powers or federal statutory interpretation does not engraft that rule on to the Constitution and make it binding on state courts. A decision elevating that rule to constitutional status and striking down contrary state practice is a new rule. See Goeke v. Branch, 514 U. S. 115, 119 (1995) (per curiam) (federal case limiting fugitive dismissal rule was supervisory, not constitutional). The Third and Sixth Circuits' reliance on Andres to support the proposition that Mills was not a new rule is clear error, contrary to Sawyer and Goeke.
A fifth factor given short shrift by the Court of Appeals, see 316 F. 3d, at 243, was the close division in Mills itself. This is, in part, due to the majority's excessive generality in the definition of the rule, discussed supra, at 5. However, this Court has noted more than once that disagreement in the case in question "suggests that the rule announced there was, in light of this Court's precedents, 'susceptible to debate among reasonable minds.' " O'Dell v. Netherland, 521 U. S. 151, 159-160 (1997) (quoting Butler, 494 U. S., at 415, and citing Sawyer, 497 U. S., at 236-237).
Finally, there is the fact that Mills struck down a standard instruction prescribed by rule and used in every Maryland capital case for many years. In Gilmore v. Taylor, 508 U. S. 333, 344-345, n. 3 (1993), a plurality of the Court noted, "The existence of such an institutionalized state practice over a period of years is strong evidence of the reasonableness of the interpretations given existing precedents by state courts." This is an important point and one worthy of definitive resolution by this Court. New rules which throw out standard practices are disruptive enough when they apply only to cases on direct review, but when they are applied as well to "final" cases, they are nothing short of disastrous. The present case would be a proper one to establish the principle that any decision disallowing a previously standard practice of long standing is a "new rule," at least presumptively if not per se.
The definition of "new rule" under Teague remains important after the enactment of the Antitterrorism and Effective Death Penalty Act of 1996 (AEDPA). As this Court held in its previous decision in the present case, Teague remains an independent limitation on federal habeas relief. Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam). Where the state court addresses the merits on state collateral review, as in the present case, the Teague limitation looks to the state of the law at a different date from the 28 U. S. C. §2254(d)(1) "clearly established" limitation. Where the state court does not address the merits due to procedural default, the latter limitation does not apply, but Teague can still be important. See, e.g., Breard v. Greene, 523 U. S. 371, 376-377 (1998) (per curiam).
In any event, the definition of "new rule" remains important because of its inverse relationship with AEDPA's "clearly established" standard. "[W]hatever would qualify as an old rule under our Teague jurisprudence will constitute 'clearly established Federal law . . .' under §2254(d)(1)." Williams v. Taylor, 529 U. S. 362, 412 (2000). Having been endorsed and codified by Congress, the distinction between new and old rules is more important than ever.
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