NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

                 Syllabus

STRINGER v. BLACK, COMMISSIONER, MISSISSIPPI
DEPARTMENT OF CORRECTIONS, et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 90-6616.   Argued December 9, 1991-Decided March 9, 1992

After finding petitioner Stringer guilty of capital murder, a Mississippi
 jury, in the sentencing phase of the case, found that there were three
 statutory aggravating factors.  These included the factor the murder
 was ``especially heinous, atrocious or cruel,'' which had not been
 otherwise defined in the trial court's instructions.  Stringer was
 sentenced to death, the sentence was affirmed by the State Supreme
 Court on direct review, and postconviction relief was denied in the
 state courts.  The Federal District Court then denied him habeas
 corpus relief, rejecting his contention that the ``heinous, atrocious or
 cruel'' aggravating factor was so vague as to render the sentence
 arbitrary, in violation of the Eighth Amendment's proscription of
 cruel and unusual punishment.  The Court of Appeals ultimately
 affirmed, holding that Stringer was not entitled to rely on Clemons
 v. Mississippi, 494 U.S. 738, or Maynard v. Cartwright, 486 U.S.
 356, in his habeas corpus proceedings because those decisions, which
 were issued after his sentence became final, announced a ``new rule''
 as defined in Teague v. Lane, 489 U.S. 288.
Held:In a federal habeas corpus proceeding, a petitioner whose death
 sentence became final before Maynard and Clemons were decided is
 not foreclosed by Teague from relying on those cases.  Pp.4-14.
   (a)When a petitioner seeks federal habeas relief based on a
 principle announced after a final judgment, Teague requires a federal
 court to determine, first, whether the decision in question announced
 a new rule, i. e., was not dictated by precedent existing when the
 judgment became final.  If the answer is yes and neither of two
 exceptions apply, the decision is not available to the petitioner.
 Second, if the decision did not announce a new rule, it is necessary
 to inquire whether granting the relief sought would create a new rule
 because the prior decision is applied in a novel setting, thereby
 extending the precedent.  See Butler v. McKellar, 494 U.S. 407,
 414-415.  P.4.
   (b)For purposes of Teague, Maynard did not announce a new rule.
 Its invalidation of Oklahoma's ``especially heinous, atrocious, or cruel''
 aggravating circumstance was controlled by Godfrey v. Georgia, 446
 U.S. 420, in which the Court held that Georgia's aggravating
 circumstance that the killing was ``outrageously or wantonly vile,
 horrible and inhuman'' was vague and imprecise, inviting arbitrary
 and capricious application of the death penalty in violation of the
 Eighth Amendment.  Pp.4-5.
   (c)This Court rejects the State's contention that, at the time
 Stringer's conviction became final and before Clemons, it would have
 been a new rule to apply the Godfrey and Maynard holdings to the
 Mississippi sentencing system because of differences between the use
 of aggravating factors in that system and their use in the Georgia
 system in Godfrey.  The principal-and critical-difference between
 the two schemes is that Mississippi, unlike Georgia, is a ``weighing''
 State, in which a jury that has found a defendant guilty of capital
 murder and found at least one statutory aggravating factor must
 weigh such factors against the mitigating evidence.  Zant v. Stephens,
 462 U.S. 862, 890, expressly left open the possibility that in a
 weighing State infection of the process with an invalid aggravating
 factor might require invalidation of the death sentence.  Although
 Clemons later held that the appellate court in such a case could
 reweigh the aggravating and mitigating circumstances or undertake
 harmless-error analysis, this Court has not suggested that the Eighth
 Amendment permits a weighing-state appellate court to affirm a
 death sentence without a thorough analysis of the role an invalid
 aggravating factor played in the sentencing process, but has required
 such courts to implement the well-established requirement of individ-
 ualized sentencing determinations in death penalty cases, see, e. g.,
 Zant, supra, at 879.  In a nonweighing State, so long as the sentenc-
 ing body finds at least one valid aggravating factor, the fact that it
 also finds an invalid factor does not infect the formal process of
 deciding whether death is appropriate.  But when the sentencing
 body is told to weigh an invalid factor in its decision, the weighing
 process itself has been skewed.  Thus, the fact that Mississippi is a
 weighing State only gives emphasis to the requirement that aggravat-
 ing factors be defined with some degree of precision and underscores
 the applicability of Godfrey and Maynard to the Mississippi system.
 Pp.5-8.
   (d)Moreover, precedent existing at the time Stringer's sentence
 became final defeats the State's contention that before Clemons it
 was reasonable to believe that there was no constitutional require-
 ment to define aggravating factors with precision in the Mississippi
 system.  Lowenfield v. Phelps, 484 U.S. 231, distinguished.  It is
 important that the Mississippi Supreme Court, the final authority on
 the meaning of Mississippi law, has at all times viewed the State's
 capital sentencing scheme as subject to Godfrey's dictates.  See, e. g.,
 Gilliard v. State, 428 So.2d 576.  The correctness of that view as a
 matter of federal law is so evident that the issue was not even
 mentioned in Clemons, in which the Court, unchallenged by the
 State, took for granted the proposition that if a State uses aggravat-
 ing factors in deciding who shall be eligible for, or receive, the death
 penalty, it cannot use factors which as a practical matter fail to guide
 the sentencer's discretion.  See, 494 U.S., at 756, n. 1 (Blackmun,
 J., concurring in part and dissenting in part).  The fact that two pre-
 Clemons Fifth Circuit cases ruled Godfrey inapplicable to Mississippi
 is not dispositive, since those cases ignored the State Supreme
 Court's own characterization of its law and accorded no significance
 to the centrality of aggravating factors in the weighing phase of a
 Mississippi capital sentencing proceeding, and were therefore serious-
 ly mistaken under precedents existing even before Maynard and
 Clemons.  Pp.8-14.
909 F.2d 111, reversed and remanded.

 Kennedy, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and White, Blackmun, Stevens, and O'Connor, JJ., joined.
Souter, J., filed a dissenting opinion, in which Scalia and Thomas,
JJ., joined.
-------------------------------


NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
No. 90-6616
--------
JAMES R. STRINGER, PETITIONER v. LEE ROY
BLACK, COMMISSIONER, MISSISSIPPI
DEPARTMENT OF CORRECTIONS, et al.
on writ of certiorari to the united states court of
appeals for the fifth circuit
[March 9, 1992]

  Justice Kennedy delivered the opinion of the Court.
  The death sentence of the petitioner in this case was
decreed by a judgment that became final before we decided
either Maynard v. Cartwright, 486 U. S. 356 (1988), or
Clemons v. Mississippi, 494 U. S. 738 (1990).  The petition-
er argues that the State of Mississippi committed the same
error in his case as it did in Clemons, and that under both
Maynard and Clemons his sentence is unconstitutional.
The question presented is whether in a federal habeas
corpus proceeding a petitioner is foreclosed from relying on
Maynard and Clemons because either or both announced a
new rule as defined in Teague v. Lane, 489 U. S. 288 (1989).

                     I
  In June 1982, Ray McWilliams and his wife, Nell, were
shot to death in their Jackson, Mississippi, home as part of
an armed robbery.  The petitioner James R. Stringer did
not fire the fatal shots, but he did plan the robbery and
take part in it.  The killing was part of his plan from the
outset.  The crimes, and their gruesome aspects, are
described in the opinion of the Mississippi Supreme Court
on direct review of the conviction and sentence.  Stringer v.
State, 454 So. 2d 468, 471-473 (1984).
  Under Mississippi law the death sentence may be
imposed for murders designated by statute as -capital
murder.-  Miss. Code Ann. 97-3-19(2) (Supp. 1991).  A
killing in the course of a burglary or robbery is included
within that category.  Following a capital murder convic-
tion, the jury in the Mississippi system proceeds to the
sentencing phase of the case.  For a defendant who has
been convicted of capital murder to receive the death
sentence, the jury must find at least one of eight statutory
aggravating factors, and then it must determine that the
aggravating factor or factors are not outweighed by the
mitigating circumstances, if any.  99-19-101.
  The jury found petitioner guilty of capital murder in the
course of a robbery.  In the sentencing phase the jury found
that there were three statutory aggravating factors.  The
aggravating factors as defined in the jury instructions, and
for the most part following the statutory wording, were:
-1. The Defendant contemplated that life would be
taken and/or the capital murder was intentionally
committed and that the Defendant was engaged in an
attempt to commit a robbery; and was committed for
pecuniary gain.
``2. The capital murder was committed for the purpose
of avoiding or preventing the detection and lawful
arrest of James R. Stringer, the Defendant.
``3. The capital murder was especially heinous, atro-
cious or cruel.-  Brief for Respondent 4.

The trial court in its instructions did not further define the
meaning of the third factor.
  On direct review the Mississippi Supreme Court affirmed.
Stringer v. State, supra.  With respect to the sentence the
court found it was not -imposed under the influence of
passion, prejudice or any other arbitrary factor,- id., at 478;
-the evidence fully support[ed] the jury's finding of statuto-
rily required aggravating circumstances,- id., at 479; and
the death sentence was not disproportionate to sentences
imposed in other cases.  Ibid.  Petitioner's conviction
became final when we denied certiorari on February 19,
1985.  Stringer v. Mississippi, 469 U. S. 1230.  Postconvic-
tion relief was denied in the state courts.  Stringer v. State,
485 So. 2d 274 (1986).
  This case comes to us from proceedings begun when
petitioner filed his first federal habeas petition in the
United States District Court for the Southern District of
Mississippi.  The relevant claim is petitioner's contention
that the third aggravating factor found by the jury and
considered in the sentencing proceeding, the -heinous
atrocious or cruel- aggravating factor, was so vague as to
render the sentence arbitrary, in violation of the Eighth
Amendment's proscription of cruel and unusual punish-
ment.  The District Court found the claim subject to a
procedural bar and, in the alternative, ruled it had no
merit.  Stringer v. Scroggy, 675 F. Supp. 356, 366 (1987).
  Without consideration of the procedural bar question, the
Court of Appeals affirmed on the merits, finding no consti-
tutional infirmity in the jury's consideration of the third
aggravating factor because two other aggravating factors
were unchallenged.  Stringer v. Jackson, 862 F. 2d 1108
(CA5 1988).  When the Court of Appeals affirmed, we had
not decided Clemons v. Mississippi, and we later vacated its
opinion for further consideration.  494 U. S. 1074 (1990).
On remand the Court of Appeals held that petitioner was
not entitled to rely on Clemons or the related case of
Maynard v. Cartwright in his habeas corpus proceeding
because those decisions announced a new rule after his
sentence was final.  The court relied upon its earlier
analysis in Smith v. Black, 904 F. 2d 950 (CA5 1990), cert.
pending, No. 90-1164, a case that had also presented the
question whether Clemons and Maynard announced a new
rule.  We granted certiorari, 500 U. S. ___ (1991), and now
reverse.

                    II
  Subject to two exceptions, a case decided after a petition-
er's conviction and sentence became final may not be the
predicate for federal habeas corpus relief unless the decision
was dictated by precedent existing when the judgment in
question became final.  Butler v. McKellar, 494 U. S. 407
(1990); Penry v. Lynaugh, 492 U. S. 302 (1989); Teague v.
Lane, 489 U. S. 288 (1989).  As we explained in Butler,
-[t]he `new rule' principle . . . validates reasonable, good-
faith interpretations of existing precedents made by state
courts even though they are shown to be contrary to later
decisions.-  494 U. S., at 414.  Neither one of the exceptions
is at issue here, so our inquiry is confined to the question
whether Clemons, Maynard, or both announced a new rule.
  When a petitioner seeks federal habeas relief based upon
a principle announced after a final judgment, Teague and
our subsequent decisions interpreting it require a federal
court to answer an initial question, and in some cases a
second.  First, it must be determined whether the decision
relied upon announced a new rule.  If the answer is yes and
neither exception applies, the decision is not available to
the petitioner.  If, however, the decision did not announce
a new rule, it is necessary to inquire whether granting the
relief sought would create a new rule because the prior
decision is applied in a novel setting, thereby extending the
precedent.  See Butler v. McKellar, supra, at 414-415.  The
interests in finality, predictability, and comity underlying
our new rule jurisprudence may be undermined to an equal
degree by the invocation of a rule that was not dictated by
precedent as by the application of an old rule in a manner
that was not dictated by precedent.

                     A
   A determination whether Maynard and Clemons an-
nounced a new rule must begin with Godfrey v. Georgia,
446 U. S. 420 (1980).  In Godfrey we invalidated a death
sentence based upon the aggravating circumstance that the
killing was -outrageously or wantonly vile, horrible and
inhuman.-  Id., at 428-429.  The formulation was deemed
vague and imprecise, inviting arbitrary and capricious
application of the death penalty in violation of the Eighth
Amendment.  We later applied the same analysis and
reasoning in Maynard.  In Maynard the aggravating
circumstance under an Oklahoma statute applied to a
killing that was -especially heinous, atrocious, or cruel.-
486 U. S., at 359.  We found the language gave no more
guidance than did the statute in Godfrey, and we invalidat-
ed the Oklahoma formulation.  486 U. S., at 363-364.
  In the case now before us Mississippi does not argue that
Maynard itself announced a new rule.  To us this appears
a wise concession.  Godfrey and Maynard did indeed involve
somewhat different language.  But it would be a mistake to
conclude that the vagueness ruling of Godfrey was limited
to the precise language before us in that case.  In applying
Godfrey to the language before us in Maynard, we did not
-brea[k] new ground.-  Butler v. McKellar, supra, at 412.
Maynard was, therefore, for purposes of Teague, controlled
by Godfrey, and it did not announce a new rule.

                     B
  Of more substance is the State's contention that it was a
new rule to apply the Godfrey and Maynard holdings to the
Mississippi sentencing process.  The State argues this must
have been an open question when petitioner's sentence
became final, with Clemons yet undecided.  We acknowl-
edge there are differences in the use of aggravating factors
under the Mississippi capital sentencing system and their
use in the Georgia system in Godfrey.  In our view, howev-
er, those differences could not have been considered a basis
for denying relief in light of precedent existing at the time
petitioner's sentence became final.  Indeed, to the extent
that the differences are significant, they suggest that
application of the Godfrey principle to the Mississippi
sentencing process follows, a fortiori, from its application to
the Georgia system.

                     1
  The principal difference between the sentencing schemes
in Georgia and Mississippi is that Mississippi is what we
have termed a -weighing- State, while Georgia is not.  See
Clemons v. Mississippi, 494 U. S., at ___; Parker v. Dugger,
498 U. S. ___, ___ (1991).  Under Mississippi law, after a
jury has found a defendant guilty of capital murder and
found the existence of at least one statutory aggravating
factor, it must weigh the aggravating factor or factors
against the mitigating evidence.  By contrast, in Georgia
the jury must find the existence of one aggravating factor
before imposing the death penalty, but  aggravating factors
as such have no specific function in the jury's decision
whether a defendant who has been found to be eligible for
the death penalty should receive it under all the circum-
stances of the case.  Instead, under the Georgia scheme,
`` `[i]n making the decision as to the penalty, the factfinder
takes into consideration all circumstances before it from
both the guilt-innocence and the sentence phases of the
trial.  These circumstances relate both to the offense and
the defendant.' ''  Zant v. Stephens, 462 U. S. 862, 872
(1983) (quoting the response of the Georgia Supreme Court
to our certified question).
  That Mississippi is a weighing State only gives emphasis
trequirement that aggravating factors be defined with
some degree of precision.  By express language in Zant we
left open the possibility that in a weighing State infection
of the process with an invalid aggravating factor might
require invalidation of the death sentence.  Id., at 890.
Although we later held in Clemons v. Mississippi that under
such circumstances a state appellate court could reweigh
the aggravating and mitigating circumstances or undertake
harmless-error analysis, we have not suggested that the
Eighth Amendment permits the state appellate court in a
weighing State to affirm a death sentence without a
thorough analysis of the role an invalid aggravating factor
played in the sentencing process.
  We require close appellate scrutiny of the import and
effect of invalid aggravating factors to implement the well-
established Eighth Amendment requirement of individual-
ized sentencing determinations in death penalty cases.  See
Zant, supra, at 879; Eddings v. Oklahoma, 455 U. S. 104,
110-112 (1982); Lockett v. Ohio, 438 U. S. 586, 601-605
(1978) (plurality opinion); Roberts v. Louisiana, 431 U. S.
633, 636-637 (1977); Gregg v. Georgia, 428 U. S. 153, 197
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.);
Woodson v. North Carolina, 428 U. S. 280, 303-304 (1976)
(plurality opinion).  In order for a state appellate court to
affirm a death sentence after the sentencer was instructed
to consider an invalid factor, the court must determine
what the sentencer would have done absent the factor.
Otherwise, the defendant is deprived of the precision that
individualized consideration demands under the Godfrey
and Maynard line of cases.
  These principles of appellate review were illustrated by
our decision in Barclay v. Florida, 463 U. S. 939 (1983).
Florida, like Mississippi, is a weighing State, Parker v.
Dugger, supra, at ___, and the trial judge imposes the
sentence based upon a recommendation from the jury.  In
Barclay the sentencing judge relied on an aggravating
factor that was not a legitimate one under state law.  We
affirmed the sentence, but only because it was clear that
the Florida Supreme Court had determined that the
sentence would have been the same had the sentencing
judge given no weight to the invalid factor.  See 463 U. S.,
at 958 (opinion of Rehnquist, J.); id., at 973-974 (opinion
of Stevens, J.).  Therefore, contrary to the dissent's sugges-
tion, post, at 8, the fact that both principal opinions in
Barclay focused on the weight the sentencer gave to an
invalid aggravating factor demonstrates that a reviewing
court in a weighing State may not make the automatic
assumption that such a factor has not infected the weighing
process.  In short, it may not make the automatic assump-
tion that Stringer claims the Mississippi Supreme Court
made in this case.
  In view of the well-established general requirement of
individualized sentencing and the more specific requirement
that a sentence based on an improper factor be reassessed
with care to assure that proper consideration was given,
there was no arguable basis to support the view of the
Court of Appeals that at the time petitioner's sentence
became final the Mississippi Supreme Court was permitted
to apply a rule of automatic affirmance to any death
sentence supported by multiple aggravating factors, when
one is invalid.
  With respect to the function of a state reviewing court in
determining whether or not the sentence can be upheld
despite the use of an improper aggravating factor, the
difference between a weighing State and a nonweighing
State is not one of -semantics,- as the Court of Appeals
thought, Stringer v. Jackson, 862 F. 2d, at 1115, but of
critical importance.  In a nonweighing State, so long as the
sentencing body finds at least one valid aggravating factor,
the fact that it also finds an invalid aggravating factor does
not infect the formal process of deciding whether death is
an appropriate penalty.  Assuming a determination by the
state appellate court that the invalid factor would not have
made a difference to the jury's determination, there is no
constitutional violation resulting from the introduction of
the invalid factor in an earlier stage of the proceedings.
But when the sentencing body is told to weigh an invalid
factor in its decision, a reviewing court may not assume it
would have made no difference if the thumb had been
removed from death's side of the scale.  When the weighing
process itself has been skewed, only constitutional harm-
less-error analysis or reweighing at the trial or appellate
level suffices to guarantee that the defendant received an
individualized sentence.  This clear principle emerges not
from any single case, as the dissent would require, post, at
7-10, but from our long line of authority setting forth the
dual constitutional criteria of precise and individualized
sentencing.  Thus, the principal difference between the
sentencing systems of Mississippi and Georgia: the different
role played by aggravating factors in the two States, under-
scores the applicability of Godfrey and Maynard to the
Mississippi system.
                     2
  Although it made no similar argument in Clemons itself,
the State contends now that before Clemons it was reason-
able to believe there was no constitutional requirement to
define aggravating factors with precision in the Mississippi
system.  It points to the fact that in order for a jury to find
a defendant guilty of capital murder it must find that the
crime fits within the narrow and precise statutory definition
of that offense.  Any additional consideration of aggravating
factors during the sentencing phase, under this view, is of
no constitutional significance because the requisite differen-
tiation among defendants for death penalty purposes has
taken place during the jury's deliberation with respect to
guilt.  The State cites our decision in Lowenfield v. Phelps,
484 U. S. 231 (1988), in support of its analysis.  But Lowen-
field, arising under Louisiana law, is not applicable here
and does not indicate that Clemons imposed a new rule.
  In Louisiana, a person is not eligible for the death penalty unless found
guilty of first-degree homicide, a category more narrow than the general
category of homi- cide.  484 U. S., at 241.  A defendant is guilty of
first-degree homicide if the Louisiana jury finds that the killing fits one
of five statutory criteria.  See id., at 242 (quoting La. Rev.Stat. Ann.
14:30A (West 1986)).  After determining that a defendant is guilty of
first-degree murder, a Louisiana jury next must decide whether there is at
least one statutory aggravating circumstance and, after considering any
mitigating circumstances, determine whether the death penalty is appropriate.
484 U. S., at 242.  Unlike the Mississippi process, in Louisiana the jury is
not required to weigh aggravating against mitigating factors.
  In Lowenfield, the petitioner argued that his death
sentence was invalid because the aggravating factor found
by the jury duplicated the elements it already had found in
determining there was a first-degree homicide.  We rejected
the argument that, as a consequence, the Louisiana
sentencing procedures had failed to narrow the class of
death-eligible defendants in a predictable manner.  We
observed that -[t]he use of `aggravating circumstances' is
not an end in itself, but a means of genuinely narrowing the
class of death-eligible persons and thereby channeling the
jury's discretion.  We see no reason why this narrowing
function may not be performed by jury findings at either
the sentencing phase of the trial or the guilt phase.-  Id., at
244-245.  We went on to compare the Louisiana scheme
with the Texas scheme, under which the required narrow-
ing occurs at the guilt phase.  Id., at 245 (discussing Jurek
v. Texas, 428 U. S. 262 (1976)).  We also contrasted the
Louisiana scheme with the Georgia and Florida schemes.
Ibid.
  The State's premise that the Mississippi sentencing
scheme is comparable to Louisiana's is in error.  The
Mississippi Supreme Court itself has stated in no uncertain
terms that, with the exception of one distinction not
relevant here, its sentencing system operates in the same
manner as the Florida system; and Florida, of course, is
subject to the rule forbidding automatic affirmance by the
state appellate court if an invalid aggravating factor is
relied upon.  In considering a Godfrey claim based on the
same factor at issue here, the Mississippi Supreme Court
considered decisions of the Florida Supreme Court to be the
most appropriate source of guidance.  In Gilliard v. State,
428 So. 2d 576, 586 (Miss. 1983), the Mississippi Supreme
Court compared the claim before it to the claim in Dobbert
v. State, 375 So. 2d 1069 (Fla. 1979), cert. denied, 447 U. S.
912 (1980).  The court stated:
-In Dobbert . . . the Florida Supreme Court held that
even though the lower court considered two circum-
stances which would not pass constitutional muster
and did not amount to aggravating circumstances,
there was one aggravating circumstance which existed
and that it was sufficient to uphold the death penalty.
The only distinction between Dobbert and the present
case is that in Dobbert, under Florida law, the judge
determined the sentence without a jury.-  Gilliard,
supra, at 586.

Whether the Mississippi Supreme Court in Gilliard was
adopting the kind of harmless-error rule we approved in
Barclay, 463 U. S., at 958, and if so, whether it applied that
same rule in Stringer's case, are questions relating to the
merits of Stringer's claim which we need not consider here.
What is dispositive is the fact that the Mississippi Supreme
Court, which is the final authority on the meaning of
Mississippi law, has at all times viewed its sentencing
scheme as one in which aggravating factors are critical in
the jury's determination whether to impose the death
penalty.  See also Evans v. State, 422 So. 2d 737, 743 (Miss.
1982) (applying Godfrey).  It would be a strange rule of
federalism that ignores the view of the highest court of a
State as to the meaning of its own law.  See Teague v.
Lane, 489 U. S., at 310 (discussing federalism as one of the
concerns underlying the nonretroactivity principle).
  As a matter of federal law, moreover, the view of the
Mississippi Supreme Court that Godfrey's dictates apply to
its capital sentencing procedure is correct.  Indeed, it is so
evident that the issue was not even mentioned in Clemons.
There we took for granted, and the State did not challenge,
the proposition that if a State uses aggravating factors in
deciding who shall be eligible for the death penalty or who
shall receive the death penalty, it cannot use factors which
as a practical matter fail to guide the sentencer's discretion.
See Clemons, supra, at 756, n.1 (opinion of Blackmun, J.,
joined by Brennan, Marshall, and Stevens, JJ., concurring
in part and dissenting in part) (noting that the unconstitu-
tionality of the vague aggravating factor is implicit in the
Court's opinion).
  Even were we free to ignore the Mississippi Supreme
Court's understanding of the way its own law works, we
would reject the suggestion that Lowenfield could form the
basis for an argument that Godfrey does not apply to
Mississippi.  Although our precedents do not require the
use of aggravating factors, they have not permitted a State
in which aggravating factors are decisive to use factors of
vague or imprecise content.  A vague aggravating factor
employed for the purpose of determining whether a defen-
dant is eligible for the death penalty fails to channel the
sentencer's discretion.  A vague aggravating factor used in
the weighing process is in a sense worse, for it creates the
risk that the jury will treat the defendant as more deserv-
ing of the death penalty than he might otherwise be by
relying upon the existence of an illusory circumstance.
Because the use of a vague aggravating factor in the
weighing process creates the possibility not only of random-
ness but also of bias in favor of the death penalty, we
cautioned in Zant that there might be a requirement that
when the weighing process has been infected with a vague
factor the death sentence must be invalidated.
  Nothing in Lowenfield suggests that the proscription of
vague aggravating factors does not apply to a capital
sentencing system like Mississippi's.  Lowenfield did not
involve a claim that a statutory aggravating factor was
ambiguous, and its relevance to  Godfrey, which it did not
find it necessary to cite, or the line of cases following from
Godfrey, is slight at best.
  We also note that the State's reliance on Lowenfield to
show that it could not have anticipated Godfrey's applica-
tion to Mississippi is somewhat odd.  For Lowenfield, after
all, was decided when the petitioner's conviction and
sentence already were final.  It is a fiction for the State to
contend that in 1984 its courts relied on a 1988 decision.
This is not to say that a State could not rely on a decision
announced after a petitioner's conviction and sentence
became final to defeat his claim on the merits.  It could.
Insofar as our new rule jurisprudence -validates reasonable,
good-faith interpretations of existing precedents,- Butler v.
McKellar, 494 U. S., at 414, however, the State may have
little cause to complain if in deciding to allow a petitioner
to rely upon a decision the federal courts look only to those
precedents which the state courts knew at the relevant
time.  In any event, we need not dwell on the anachronism
inherent in the State's Lowenfield argument because, as we
have concluded, that case does not provide a basis for
concluding that it was a new rule to apply Godfrey to the
Mississippi system.
  The State next argues that Clemons' application of
Godfrey to Mississippi could not have been dictated by
precedent because prior to Clemons the Fifth Circuit
concluded that Godfrey did not apply to Mississippi.  See
Evans v. Thigpen, 809 F. 2d 239, cert. denied, 483 U. S.
1033 (1987); Johnson v. Thigpen, 806 F. 2d 1243 (1986),
cert. denied, 480 U. S. 951 (1987).  Before addressie
merits of this argument we reiterate that the rationale of
the Fifth Circuit has not been adopted by the Mississippi
Supreme Court, which, as a state court, is the primary
beneficiary of the Teague doctrine.  The Mississippi Su-
preme Court has recognized that it is bound by Godfrey.
See, e. g., Mhoon v. State, 464 So. 2d 77, 85 (1985) (requir-
ing, based on Godfrey, that a capital sentencing jury be
given a narrowing construction of the -heinous, atrocious or
cruel- factor).
  The Fifth Circuit's pre-Clemons views are relevant to our
inquiry, see Butler, supra, at 415, but not dispositive.  The
purpose of the new rule doctrine is to validate reasonable
interpretations of existing precedents.  Reasonableness, in
this as in many other contexts, is an objective standard,
and the ultimate decision whether Clemons was dictated by
precedent is based on an objective reading of the relevant
cases.  The short answer to the State's argument is that the
Fifth Circuit made a serious mistake in Evans v. Thigpen
and Johnson v. Thigpen.  The Fifth Circuit ignored the
Mississippi Supreme Court's own characterization of its law
and accorded no significance to the fact that in Mississippi
aggravating factors are central in the weighing phase of a
capital sentencing proceeding.  As we have explained, when
these facts are accorded their proper significance, the
precedents even before Maynard and Clemons yield a well-
settled principle: use of a vague or imprecise aggravating
factor in the weighing process invalidates the sentence and
at the very least requires constitutional harmless-error
analysis or reweighing in the state judicial system.
  We reverse the decision of the Court of Appeals and
remand the case for further proceedings consistent with this
opinion.
                         It is so ordered.
-------------------------------


SUPREME COURT OF THE UNITED STATES
--------
No. 90-6616
--------
JAMES R. STRINGER, PETITIONER v. LEE ROY
BLACK, COMMISSIONER, MISSISSIPPI DEPART-
MENT OF CORRECTIONS, et al.
on writ of certiorari to the united states court of
appeals for the fifth circuit
[March 9, 1992]

  Justice Souter, with whom Justice Scalia and Justice
Thomas join, dissenting.
  Today the Court holds that no reasonable jurist could
have believed in 1985, two years after Zant v. Stephens, 462
U. S. 862 (1983), that the holding of that case would apply
to a so-called ``weighing'' State.  The Court maintains, on
the contrary, that in 1985 it was obvious that a sentencer's
weighing of a vague aggravating circumstance deprives a
defendant of individualized sentencing.  While that may be
obvious after Maynard v. Cartwright, 486 U. S. 356 (1988),
I submit that was not so before this Court decided that
case.  I respectfully dissent.
                      I
  Under the principle first announced in Teague v. Lane,
489 U. S. 288 (1989), a prisoner seeking habeas corpus
relief in federal court generally cannot benefit from a new
rule announced after the prisoner's conviction became final,
id., at 301 (plurality opinion), that is, after exhausting all
direct appeals, see Penry v. Lynaugh, 492 U. S. 302, 314
(1989).  A decision announces a new rule ``if the result was
not dictated by precedent existing at the time the defen-
dant's conviction became final.''  Teague, supra, at 301
(plurality opinion) (emphasis omitted).  The result in a
given case is not dictated by precedent if it is ``susceptible
to debate among reasonable minds,'' Butler v. McKellar, 494
U. S. 407, 415 (1990), or, put differently, if ``reasonable
jurists may disagree,'' Sawyer v. Smith, 497 U. S. ____,
(1990).
  Petitioner's conviction became final for Teague purposes
on February 19, 1985.  He now claims the benefit of the
rule that an Eighth Amendment violation occurs when a
sentencer in a weighing State considers a vague aggravat-
ing circumstance, even if the sentencer has also found the
existence of at least one other aggravating circumstance
that is neither vague nor otherwise infirm.  Because this
Court never endorsed that position before February 19,
1985, I will discuss the relevant pre-1985 decisions, infra,
Part I-A, and the post-1985 decisions that, implicitly at
least, announced the rule petitioner invokes, infra, Part
I-B.  Finally, I will enquire whether this rule was dictated
by the pre-1985 decisions, infra, Part II.
                      A
  The cases determining the apposite law before 1985 start
with Godfrey v. Georgia, 446 U. S. 420 (1980).  Under the
Georgia sentencing scheme, a defendant is given a life
sentence unless the jury finds one or more aggravating
circumstances.  Once the jury does that, aggravating
circumstances no longer play a role:  the jury is instructed
to determine whether the defendant should receive a death
sentence by considering all the evidence in aggravation and
in mitigation.  The jury is not instructed to weigh any
aggravating circumstances against mitigating circumstan-
ces.  In Godfrey, a Georgia jury had returned a death
verdict on the strength of just one aggravating circum-
stance, that the murder was ``outrageously or wantonly vile,
horrible and inhuman.''  Id., at 426 (plurality opinion).
Saying that ``[a] person of ordinary sensibility could fairly
categorize almost every murder as `outrageously or wanton-
ly vile, horrible and inhuman,''' id., at 428-429, this Court
held that this circumstance failed to impose any ``restraint
on the arbitrary and capricious infliction of the death
sentence,'' id., at 428.  Accordingly, Georgia's sentencing
scheme, as applied, violated the Eighth Amendment in the
same way as the scheme struck down in Furman v. Geor-
gia, 408 U. S. 238 (1972):  it failed to ``provide a meaningful
basis for distinguishing the few cases in which [the penalty]
is imposed from the many cases in which it is not.''  446
U. S., at 427 (internal quotations omitted).
  After Godfrey came Zant v. Stephens, 462 U. S. 862
(1983), arising from a Georgia jury's death verdict based on
a showing of several aggravating circumstances, one of
which was that respondent had ``a substantial history of
serious assaultive criminal convictions,'' id., at 866.  Shortly
after respondent's sentencing, the Supreme Court of
Georgia, in a different case, held that the ``substantial
history'' circumstance left ``a wide latitude of discretion in
a jury as to whether or not to impose the death penalty,''
rendering a death sentence imposed upon the strength of
the ``substantial history'' circumstance alone unconstitution-
al under Furman.  Arnold v. State, 236 Ga. 534, 541, 224
S. E. 2d 386, 392 (1976).  The Supreme Court of Georgia
nevertheless refused to vacate Stephens' sentence, holding
it adequately supported by the other, unchallenged,
aggravating circumstances.  Stephens v. State, 237 Ga. 259,
261-262, 227 S. E. 2d 261, 263, cert. denied, 429 U. S. 986
(1976).  This Court agreed, holding Godfrey to be distin-
guishable because, in that case, the single aggravating
circumstance failed to narrow the class of persons eligible
for the death penalty, as required by the Eighth Amend-
ment, 462 U. S., at 878, while in Stephens, the remaining
aggravating circumstances properly discharged the narrow-
ing obligation, id., at 879.  The vagueness of one among
several aggravating circumstances was therefore held to be
irrelevant, and the scheme itself adequate under Furman,
462 U. S., at 888-889, so long as it included mandatory
appellate review for any arbitrariness or disproportionality
stemming from some other source, id., at 890.
  The last relevant pre-1985 decision is Barclay v. Florida,
463 U. S. 939 (1983).  The Florida scheme, like the one in
Georgia, requires the sentencer to impose a life sentence if
it finds no aggravating circumstances present.  But, unlike
Georgia, Florida is a weighing State, in which the sentencer
who finds that one or more aggravating circumstances exist
must determine the sentence by weighing aggravating and
mitigating circumstances.  In Barclay, a judge had imposed
a death sentence after finding several aggravating circum-
stances, one of which was that the petitioner had a criminal
record, id., at 944-945, which Florida law did not recognize
as an aggravating circumstance, id., at 946.  This Court
held that the resulting death sentence did not violate the
Eighth Amendment, for the same reason the sentence in
Stephens did not: the remaining aggravating circumstances
satisfied the Eighth Amendment's narrowing requirement.
See id., at 957 (opinion of Rehnquist, J.); id., at 966-967
(Stevens, J., concurring in judgment); see also id., at
947-948, n. 5 (opinion of Rehnquist, J.) (distinguishing
Godfrey as involving only one aggravating circumstance).
                      B
  The first case in which this Court applied the rule from
which petitioner seeks to benefit was Maynard v. Cart-
wright, 486 U. S. 356 (1988).  There, an Oklahoma jury had
found the presence of two aggravating circumstances, one
of which was that the murder was ``especially heinous,
atrocious, or cruel.''  Because Oklahoma is a weighing State,
the trial court had instructed the jury that, in determining
the penalty, it should weigh these aggravating circumstanc-
es against any mitigating circumstances, and the jury had
eventually returned a verdict of death.  On collateral
review, the Court of Appeals for the Tenth Circuit held that
the ``heinous, atrocious, or cruel'' circumstance without
further instruction was vague in the Godfrey sense.  See
Cartwright v. Maynard, 822 F. 2d 1477, 1485-1491 (1987)
(en banc).  Distinguishing Stephens, the Court of Appeals
held that this vagueness amounted to an Eighth Amend-
ment violation because Oklahoma was a weighing State,
822 F. 2d, at 1480.  It vacated Cartwright's sentence,
noting that Oklahoma's highest court had failed to cure the
constitutional defect by either reweighing or performing
harmless-error review, id., at 1482.
  This Court affirmed, holding that Godfrey controlled
because the ``especially heinous, atrocious, or cruel'' circum-
stance gave no more guidance than the ``outrageously or
wantonly vile, horrible and inhuman'' circumstance in
Godfrey, 486 U. S., at 363-364.  The Court rejected Okla-
homa's argument that Cartwright's sentence was adequate-
ly supported by the unchallenged aggravating circumstance,
observing that Oklahoma's highest court had a practice of
not attempting to ``save the death penalty when one of
several aggravating circumstances . . . was found invalid
. . . ,'' id., at 365.  (Instead, that court would simply
commute any death sentence imposed after finding an
``invalid'' aggravating circumstance into a sentence of life
imprisonment, see id., at 359.)  The Court said that ``the
Court of Appeals cannot be faulted for not itself undertak-
ing what the state courts themselves refused to do.''  Id., at
365.
  Cartwright was followed by Clemons v. Mississippi, 494
U. S.1990).  Like Oklahoma, Mississippi is a weighing
State, and a jury had returned a death verdict finding that
two aggravating circumstances were present (one of which
had been that the crime was ``especially heinous, atrocious,
or cruel''), and finding that these two aggravating circum-
stances outweighed any mitigating circumstances.  The
Supreme Court of Mississippi had affirmed, distinguishing
Cartwright on the ground, inter alia, that, while Oklahoma
had no procedure for salvaging a death sentence resting in
part on a vague aggravating circumstance, there was an
established procedure in Mississippi.  ``[W]hen one aggra-
vating circumstance is found to be invalid . . . , a remaining
valid aggravating circumstance will nonetheless support the
death penalty verdict.''  Id., at 743-744.  In this Court,
Clemons argued that, where a jury had originally imposed
a death sentence, the Constitution demanded resentencing
by a jury whenever a state appellate court found that the
jury had considered an unconstitutionally vague aggravat-
ing circumstance.  Id., at 744.  This Court rejected the
argument, saying that nothing in the Constitution forbade
a state appellate court to salvage an unconstitutional sen-
tence, id., at 745-750, although, at a minimum, the state
appellate court would have to reweigh or perform harmless-
error review, id., at 751-752.
  In rejecting a more relaxed rule ``authorizing or requiring
affirmance of a death sentence so long as there remains
at least one valid aggravating circumstance,'' the Court
explained:
  ``An automatic rule of affirmance in a weighing State
  would be invalid under Lockett v. Ohio, 438 U. S. 586
  (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982),
  for it would not give defendants the individualized
  treatment that would result from actual reweighing of the
  mix of mitigating factors and aggravating circumstances.
  Cf. Barclay v. Florida, [supra, at 958].''  494 U. S., at 752.
  See also Parker v. Dugger, 498 U. S. ____, ____ (1991).
  Today the Court adds to Clemons' explanation by reason-
ing that a sentencer's weighing of a vague aggravating
circumstance deprives the defendant of individualized
sentencing because it ``creates the possibility . . . of random-
ness.''  Ante, at 12.  The Court says that a sentencer's
weighing of a vague aggravating circumstance may ``ske[w]''
the weighing process, ante, at 8, by placing a ``thumb [on]
death's side of the scale,'' ibid., by ``creat[ing] the risk [of]
treat[ing] the defendant as more deserving of the death
penalty,'' ante, at 12, or by "creat[ing] the possibility . . . of
bias in favor of the death penalty," ibid.
                     II
  Like Godfrey and Stephens, the petitioner in the instant
case was sentenced to death after a finding of a vague
aggravating circumstance.  Like Stephens, but unlike
Godfrey, he was sentenced on the basis of more than one
aggravating circumstance, only one of which he challenged.
The issue in this case, then, is whether it would have been
reasonable to believe in 1985 that a sentencer's weighing of
a vague aggravating circumstance does not offend the
Eighth Amendment so long as the sentencer has found at
least one other valid aggravating circumstance.  Put
differently, the question is whether it would have been
reasonable to believe in 1985 that the holding in Stephens
could apply to a weighing State.  The majority answers
these questions in the negative, saying that, in 1985, no
reasonable jurist could have failed to discover a concern
with randomness in this Court's individualized-sentencing
cases, or have failed to realize that a sentencer's weighing
of a vague aggravating circumstance deprives a defendant
of individualized sentencing.  I think this answer endues
the jurist with prescience, not reasonableness.
  It is true that the Court in Stephens reserved judgment
on the question whether its holding would apply to a
weighing State:
  ``[I]n deciding this case we do not express any opinion
  concerning the possible significance of a holding that a
  particular aggravating circumstance is `invalid' under a
  statutory scheme in which the judge or jury is specifically
  instructed to weigh statutory aggravating and mitigating
  circumstances in exercising its discretion whether to
  impose the death penalty.''  462 U. S., 890.
I agree that this statement would have put a reasonable
jurist on notice that Stephens' rule might not apply to a
weighing State, but the answer to the question reserved
was no foregone conclusion.  It is worth remembering that
the Georgia jury in Stephens was instructed simply to
``conside[r]'' all aggravating and mitigating evidence, see id.,
at 871, leaving it with what the respondent described as
``unbridled discretion'' at the final stage of sentencing, id.,
at 875, which this Court found to be no violation of the
Eighth Amendment, id., at 875-880.  If unguided discretion
created no risk of randomness, it was hardly obvious that
this risk arose when a vague aggravating circumstance was
weighed.  To conclude after Stephens that the outcome in
Cartwright and Clemons was dictated is a leap of reason.
  The leap lengthens when one considers Barclay, for I
think a reasonable jurist, in 1985, could have concluded
that this Court resolved the question reserved in Stephens
when it decided Barclay, which strongly implied that the
Stephens principle applied to weighing States like Florida.
See 463 U. S., at 957 (opinion of Rehnquist, J.); id., at
966-967 (Stevens, J., concurring in judgment).  The
majority attempts to minimize Barclay by saying that the
Barclay Court upheld the sentence ``only because it was
clear that the Florida Supreme Court had determined that
the sentence would have been the same had the sentencing
judge given no weight to the invalid factor.''  Ante, at 7
(citing 463 U. S., at 958 (opinion of Rehnquist, J.)).  But I
do not think Barclay can be explained away so easily.
  It is true that the plurality opinion noted that the
Supreme Court of Florida performed harmless-error review,
ibid.  But the opinion's discussion of this point merely
responded to Barclay's argument that the Supreme Court
of Florida had failed to apply state-law precedent properly,
which, Barclay maintained, required harmless-error review,
see id., at 957.  The plurality rejected that argument,
saying that failure to apply those cases would be ``mere
errors of state law [that] are not the concern of this Court,''
and that, in any event, the Supreme Court of Florida had,
contrary to petitioner's assertions, performed harmless-error
review.  Id., at 957-958.  Nothing in the plurality's opinion
suggests that harmless-error review would be constitution-
ally required where the sentencer had weighed an ``invalid''
aggravating circumstance.
  It is also true that the concurring opinion of Justice
Stevens, who cast the fifth vote in Barclay, stated that
Florida law required the Supreme Court of Florida to
reweigh aggravating and mitigating circumstances.  See id.,
at 974 (Stevens, J., concurring in judgment).  But that
simply responded to Barclay's argument that the Supreme
Court of Florida failed to perform the quantum of appellate
review that the Constitution requires in every capital case
(regardless of whether the trial court commits state-law
error).  See id., at 972-973.  Justice Stevens' opinion
merely noted that this Court had held in Proffitt v. Florida,
428 U. S. 242, 253 (1976), that reweighing satisfied the
appellate-review obligation the Constitution imposed, 463
U. S., at 974.  Justice Stevens never said that reweighing
would be the constitutionally required minimum where the
sentencer had weighed an ``invalid'' aggravating circum-
stance.
  Although Barclay may be read as assuming that some
appellate test must be passed if a death verdict is to stand
in a weighing State despite the finding of an invalid
aggravating circumstance, nowhere do the opinions state
that the State Supreme Court's mandated proportionality
review would not satisfy the required constitutional mini-
mum.  See Proffitt, supra, at 258 (``The Supreme Court of
Florida reviews each death sentence to ensure that similar
results are reached in similar cases'').  Mississippi law
requires just such review.  See ante, at 2-3.
  In sum, after Barclay, a jurist mindful of the Stephens
caveat could reasonably have assumed that weighing one
invalid aggravating circumstance along with one or more
valid ones need not be treated as significant enough to
amount to constitutional error in a State that at least
provided appellate review for proportionality.  That is
dispositive under Teague:  a reasonable reading of Barclay
bars the conclusion that the result in Cartwright and
Clemons was dictated by the cases on our books in 1985.
  The Fifth Circuit, indeed, held as recently as 1988 that
the rule in Stephens applied to a weighing State.  See
Stringer v. Jackson, 862 F. 2d 1108, 1115 (1988); Edwards
v. Scroggy, 849 F. 2d 204, 211 (1988).  The conflict be-
tween its view and that of the Tenth Circuit, see Cart-
wright v. Maynard, 822 F. 2d 1477, 1480 (1987) (en banc),
is itself evidence that it was not unreasonable to believe in
1985 that Stephens would govern the result in this case.
See Butler v. McKellar, 494 U. S. 407, 415 (1990).  Nor, in
the light of my analysis, can the Fifth Circuit's opinion be
dismissed as having ``no arguable basis to support'' the view
expressed, ante, at 8.
                     III
  In sum, I do not think that precedent in 1985 dictated
the rule that weighing a vague aggravating circumstance
necessarily violates the Eighth Amendment even when
there is a finding of at least one other, unobjectionable,
aggravating circumstance.  It follows that I think that it
was reasonable to believe that neither reweighing nor
harmless-error review would be required in that situation.
-------------------------------
