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IV. There is nothing remotely unconstitutional about a modified rule of res judicata.

Despite the denial of certiorari on the point, petitioner raises it on the basis of construing statutes to avoid constitutional questions. The definitive answer is given by Almendarez-Torres v. United States, 523 U. S. 224, 238 (1998):

"The doctrine seeks in part to minimize disagreement between the Branches by preserving congressional enactments that might otherwise founder on constitutional objections. It is not designed to aggravate that friction by creating (through the power of precedent) statutes foreign to those Congress intended, simply through fear of a constitutional difficulty that, upon analysis, will evaporate. Thus, those who invoke the doctrine must believe that the alternative is a serious likelihood that the statute will be held unconstitutional. Only then will the doctrine serve its basic democratic function of maintaining a set of statutes that reflect, rather than distort, the policy choices that elected representatives have made."

Litigants must not be empowered to subvert the democratic process and have courts twist statutes beyond recognition simply by conjuring up specious constitutional hobgoblins. That would be the effect of accepting this argument in this case.

The constitutional argument is made at great length in Liebman & Ryan, supra, and refuted in CJLF's response article, Scheidegger, supra. If the Court wishes to consider the constitutional question, we simply refer to the article for a full discussion. There is, however, one point we will include here.

In Montana v. United States, 440 U. S. 147, 149-151 (1979), the question presented was one of a state tax which, in practice, fell entirely on the federal government. The case thus involved the same issue as the great case of McCulloch v. Maryland, 4 Wheat. (17 U. S.) 316 (1819). There had been a prior judgment in state court against federal contractors in privity with the government. 440 U. S., at 151.

This Court had jurisdiction, i.e., the power to decide the case, and the Court did decide the case. It decided, however, without reaching the underlying claim. It decided on the ground that the issue had been previously decided. See id., at 164. Thus, a prior judgment of a state court can be the basis of decision in a subsequent suit in federal court, even in the Supreme Court, even on an issue as momentous as McCulloch, and even against the United States itself.

If that is so, is there any reason that a prior state decision cannot be the basis for decision in a case such as Thompson v. Keohane, 516 U. S. 99 (1995)? In that case, the underlying question was whether the conviction of a clearly guilty murderer should be thrown out, not because of any contention his confession was actually involuntary, but only because his un-Mirandized statement was made at a time when he might or might not have been in "custody." See id., at 101-102.

For over two centuries, Congress has directed that, for most cases, state judgments are res judicata in federal courts. See supra, at 6. The legitimacy of its authority to do so is beyond question. Why is this statute, extending a rule of prior adjudication to cases like Thompson, any different? Is it because Congress chose not to impose full-blown res judicata, but instead required that the state court decision be reasonable? See Liebman & Ryan, supra, 98 Colum. L. Rev., at 781-782, and n. 389 (purporting to distinguish Full Faith and Credit Act as "quantitative" versus "qualitative" control). Unless the Constitution forbids compromise, it does not force Congress to choose between de novo relitigation and completely abolishing federal habeas for state prisoners. See Scheidegger, supra, 98 Colum. L. Rev., at 892-893, 921, 957-958. The compromise contained in 28 U. S. C. §2254(d), under any of its interpretations in the courts of appeals, is well within the power of Congress to specify the preclusive effect of state judgments in federal courts.

V. The state court correctly identified and reasonably applied the governing rule.

Whether the kind of assessment of the evidence that the Virginia Supreme Court conducted here amounts to the appellate reweighing endorsed by Strickland is a question that should be answered in a case that actually turns on it. So, too, is the question of whether a hung penalty jury is a malfunction of the system within the Whiteside/Fretwell rationale. See Jones v. United States, 527 U. S. __ (No. 97-9361 June 21, 1999) (slip op., at 8) (noting deadlock as jury's inability to fulfill its role, not as a normal operation of the process).

This is not the case, however. At the bottom line, the Virginia Supreme Court decided that petitioner had not met the "straight" Strickland requirement. After reviewing the evidence, the court concluded there was " 'no reasonable probability that the omitted evidence would have changed the conclusion . . . .' " Williams v. Warden, 487 S. E. 2d 194, 200 (Va. 1997) (quoting Strickland, 466 U. S., at 700). Whatever alternative holdings or dicta may be in the court's opinion, if this holding passes muster under the statute then habeas relief was properly denied.

Applying the three-step test outlined supra, at 25, Strickland is clearly established and was applied by the state court. The only question is whether the application was susceptible to debate among reasonable minds. As this Court recently emphasized while discussing an equivalent standard in Strickler v. Greene, 527 U. S. __, 119 S. Ct. 1936, 1953 (1999), the test is not "reasonable possibility" but rather "reasonable probability," and the difference matters. Given the height of this hurdle, the decision of the Virginia Supreme Court is not unreasonable.

CONCLUSION

The decision of the Court of Appeals for the Fourth Circuit should be affirmed.

August, 1999

Respectfully submitted,

Kent S. Scheidegger

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