Dugger v. Adams

Justice White

delivered the opinion of the Court.

In this case we decide whether our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985), provided cause for respondent’s failure to challenge the trial court’s instructions in accordance with state procedures.

Respondent Aubrey Dennis Adams, Jr., was charged with the first-degree murder of 8-year-old Trisa Gail Thornley, and the State sought to impose the death penalty. At the start of jury selection for respondent’s trial, the trial judge undertook to instruct the prospective jurors on their “advisory” role under Florida law.¹ The judge informed the initial panel of prospective jurors:

“The Court is not bound by your recommendation. The ultimate responsibility for what this man gets is not on your shoulders. It’s on my shoulders. You are merely an advisory group to me in Phase Two. You can come back and say, Judge, we think you ought to give the man life. I can say, I disregard the recommendation of the Jury and I give him death. You can come back and say, Judge, we think he ought to be put to death. I can say, I disregard your recommendation and give him life. So that this conscience part of it as to whether or not you’re going to put the man to death or not, that is not your decision to make. That’s only my decision to make and it has to be on my conscience. It cannot be on yours.” App. 19-20.

The judge had intended to give this explanation to the entire venire before beginning the selection process but forgot to do so, and so he gave a similar explanation each time new prospective jurors were seated. As a result, each of the jurors ultimately selected heard the explanation at least once, and several heard it a number of times. In addition, the judge interrupted counsel’s voir dire on two occasions to repeat that the court, not the jury, was responsible for sentencing, and again instructed the jury to that effect before it began its deliberations. Defense counsel did not object at any point to these instructions.

On October 20, 1978, the jury found respondent guilty of first-degree murder. After a separate sentencing hearing, the jury recommended that he be sentenced to death, and the trial judge imposed a death sentence.² The Florida Supreme Court affirmed respondent’s conviction and sentence on direct appeal, Adams v. State, 412 So. 2d 850 (1982), and this Court denied certiorari, 459 U. S. 882 (1982). Respondent did not allege as error, on either state or federal grounds, the trial judge’s instructions to the jurors on their responsibility for the sentence they would recommend.

In September 1984, the Florida Supreme Court affirmed the denial of respondent’s first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Adams v. State, 456 So. 2d 888. Again, respondent did not challenge the trial judge’s statements to the jurors on their responsibility for the death sentence. Respondent next filed his first federal habeas petition in District Court; once again he did not challenge the trial judge’s instructions. The District Court denied his habeas petition on September 18, 1984, Adams v. Wainwright, No. 84-170—Civ-Oc-16 (MD Fla.), the Eleventh Circuit affirmed, 764 F. 2d 1356 (1985), and this Court denied certiorari, 474 U. S. 1073 (1986).

On June 11, 1985, Caldwell v. Mississippi, 472 U. S. 320, was decided. The Court there held that remarks by the prosecutor in a capital case that misinformed the jury as to the role of appellate review violated the Eighth Amendment. Id., at 336 (plurality opinion); id., at 341-342 (O’Connor, J., concurring in part and concurring in judgment). Based on Caldwell, respondent filed a second motion for postconviction relief under Florida Rule 3.850, challenging for the first time the trial judge’s statements to the jurors that they were not responsible for the sentence they recommended and arguing that the judge’s instructions violated the Eighth Amendment by misinforming the jury of its role under Florida law. According to respondent, although the Florida death penalty statute provided that the jury’s recommendation was only advisory, the Florida Supreme Court had held that a trial judge could only override the jury’s verdict if the facts were “so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So. 2d 908, 910 (1975) (per curiam). Since the trial judge in this case told the jurors that the sentencing responsibility was solely his and failed to tell them that he could override their verdict only under limited circumstances, respondent argued, the judge misled the jury in violation of Caldwell. The Florida Supreme Court refused to address respondent’s argument on the merits, however, because respondent had failed to raise the argument on direct appeal. Adams v. State, 484 So. 2d 1216, 1217, cert. denied, 475 U. S. 1103 (1986).

The Caldwell claim was then raised in respondent’s second federal habeas petition. The District Court held that the claim was procedurally barred, and that, alternatively, respondent’s Caldwell claim was meritless. Adams v. Wainwright, No. 86-64—Civ-Oc-16 (MD Fla., Mar. 7, 1986), p. 9, App. to Pet. for Cert. A-43, A-56 — A-60. The Eleventh Circuit reversed. Adams v. Wainwright, 804 F. 2d 1526 (1986), modified on denial of rehearing, 816 F. 2d 1493 (1987). The Court of Appeals held that respondent’s Caldwell claim “was so novel at the time of [his] trial in October 1978 and his sentencing and appeal in early 1979 that its legal basis was not reasonably available at that time”; therefore, he had established cause for his procedural default. 816 F. 2d, at 1498. The court proceeded to address the merits of respondent’s Caldwell claim, concluding that the trial judge’s instructions violated the Eighth Amendment. 804 F. 2d, at 1532-1533.

We granted certiorari to review the Eleventh Circuit’s holding that Caldwell provides cause for respondent’s procedural default,³ 485 U. S. 933 (1988), and we now reverse.

In Wainwright v. Sykes, 433 U. S. 72, 87 (1977), this Court required that habeas petitioners show “cause” and “prejudice” before federal courts will review claims that the state courts have found procedurally defaulted. We have reaffirmed this requirement on several occasions. See Murray v. Carrier, 477 U. S. 478, 494-495 (1986); Engle v. Isaac, 456 U. S. 107, 129 (1982). We have, however, “left open ‘for resolution in future decisions the precise definition’ ” of cause .and prejudice. Amadeo v. Zant, 486 U. S. 214, 221 (1988) '(quoting Sykes, supra, at 87). See also Reed v. Ross, 468 U. S. 1, 13 (1984).

Reed v. Ross held that one way a petitioner can establish cause is by showing that “a constitutional claim is so novel that its legal basis is not reasonably available to counsel.” Id., at 16. The Eleventh Circuit, relying on Reed, held in this case that “Eighth Amendment jurisprudence at the time of [respondent’s] procedural default did not provide a reasonable basis” on which to raise a Caldwell claim. 816 F. 2d, at 1499. The Court of Appeals reviewed our prior cases and concluded that none of them indicated that statements such as the ones made by the trial judge here “implicated the Eighth Amendment prohibition against cruel and unusual punishment.” Ibid. The Court also noted that it could find no decisions by other courts suggesting that “this type of Eighth Amendment claim was being raised at that time.” Ibid.

We believe that the Eleventh Circuit failed to give sufficient weight to a critical fact that leads us to conclude, without passing on the Court of Appeals’ historical analysis, that Caldwell does not provide cause for respondent’s procedural default. As we have noted, the decision in “Caldwell is relevant only to certain types of comment — those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 477 U. S. 168, 184, n. 15 (1986). As respondent conceded at oral argument, if the challenged instructions accurately described the role of the jury under state law, there is no basis for a Caldwell claim. To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law. See, e. g., Tr. of Oral Arg. 29, 32, 33, and 36-37. Respondent therefore must be asserting in this case that the trial court’s remarks violated state law, and in finding a Caldwell violation in this case, the Court of Appeals must have concluded that the remarks in question were error under Florida law.⁴

If respondent and the Court of Appeals are correct in this regard, respondent plainly had the basis for an objection and an argument on appeal that the instructions violated state law. See Pait v. State, 112 So. 2d 380, 383-384 (Fla. 1959) (holding that misinforming the jury of its role constitutes reversible error); Blackwell v. State, 79 So. 731, 735-736 (Fla. 1918) (same).⁵ Yet, despite the availability of this claim under state law, respondent did not object to the remarks at trial or challenge them on appeal. As a result, Florida law bars respondent from raising the issue in later state proceedings. See, e. g., Adams, 484 So. 2d, at 1217.

Respondent offers no excuse for his failure to challenge the remarks on state-law grounds, and we discern none that would amount to good cause in a federal habeas corpus proceeding. Had respondent objected at the time and asserted error under state law, and had the trial or appellate court sustained his objection, the error would have been corrected in the state system. Had his objection been overruled and that ruling sustained on appeal, we would very likely know that the instruction was an accurate reflection of state law. In either event, it is doubtful that the later decision in Caldwell would have provoked the filing of a second habeas corpus petition. In these circumstances, the fact that it turns out that the trial court’s remarks were objectionable on federal as well as state grounds is not good cause for his failure to follow Florida procedural rules.

Reed v. Ross is of no help to respondent. In that case, the -defendant failed to challenge on appeal an instruction that was plainly valid under the settled law of the State. Six years later, it was held in Mullaney v. Wilbur, 421 U. S. 684 (1975), that such an instruction violated the Due Process Clause of the Federal Constitution. We held that there was a good cause for the procedural default because a challenge to the instruction was “so novel that its legal basis [was] not reasonably available to counsel.” 468 U. S., at 16. Hence, there was no reason for suspecting that defense counsel was flouting state procedures for tactical or other reasons. But here respondent claims that the court’s remarks were invalid under state law at the time; yet those remarks were not objected to nor were they challenged on appeal. Unlike Reed, the legal basis for a challenge was plainly available, and it would not be safe to assume that the failure to object was not for tactical or other reasons that will not excuse the default in a habeas corpus proceeding. Indeed, at the time of respondent’s trial there was some suggestion that comments such as those by the trial judge would incline the jury toward leniency rather than toward recommending a death sentence. See Dobbert v. Florida, 432 U. S. 282, 294, and n. 7 (1977). Furthermore, because in Reed the legal basis for the claim at issue was so lacking, it could not be said that adjudicating the claim in federal court would infringe on the interest of the state courts in enforcing their procedural rules. But here, as we have said, the State has every interest in having the defendant challenge a faulty instruction in a timely manner so that it can correct the misstatement, and that interest does not disappear when it is later held that the instruction violates the Federal Constitution if it erroneously describes the role of the jury under state law.

We agree with respondent and the Court of Appeals that the availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution. See 816 F. 2d, at 1499, n. 6. It is clear that “mere errors of state law are not the concern of this Court unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution.” Barclay v. Florida, 463 U. S. 939, 957-958 (1983) (plurality opinion) (citation omitted). But the issue in this case is not whether respondent could have obtained federal habeas relief at the time of his trial for the trial judge’s instructions. Rather, the issue is whether we should exercise our equitable power to overlook respondent’s state procedural default. Reed, 468 U. S., at 9.

Neither do we hold that whenever a defendant has any basis for challenging particular conduct as improper, a failure to preserve that claim under state procedural law bars any subsequently available claim arising out of the same conduct. Indeed, respondent here could have challenged the improper remarks by the trial judge at the time of his trial as a violation of due process. See Donnelly v. DeChristoforo, 416 U. S. 637 (1974). Rather, what is determinative in this case is that the ground for challenging the trial judge’s instructions — that they were objectionable under state law — was a necessary element of the subsequently available Caldwell claim. In such a case, the subsequently available federal claim does not excuse the procedural default.⁶

The judgment of the Court of Appeals is therefore reversed.

It is so ordered.

1 Florida Stat. §921.141 (1985) provides in relevant part as follows:

“(2) ADVISORY SENTENCE BY THE JURY.-After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters:

“(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (5);

“(b) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and

“(c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.

“(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH.-Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:

“(a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and

“(b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.”

2 As aggravating circumstances, the trial judge found that the murder was committed while respondent was engaged in or attempting kidnaping and rape, was committed to avoid arrest, and was especially heinous, atrocious, or cruel. As mitigating circumstances, the trial judge found that respondent had no significant history of prior criminal activity, was under the influence of extreme emotional or mental disturbance at the time of the murder because he and his wife were getting a divorce, and was only 20 years of age.

3 Shortly after the Eleventh Circuit’s decision in this case, the Tenth Circuit also held that Caldivell was sufficiently novel to provide cause for a procedural default. Dutton v. Brown, 812 F. 2d 593, 596 (en banc) (finding cause for procedural default because “[t]he law petitioner relies on did not become established until the Caldwell decision in 1985”), cert. denied, 484 U. S. 836 (1987). Previously, however, the Fifth Circuit had held in Moore v. Blackburn, 774 F. 2d 97 (1985) (alternative holding), cert. denied, 476 U. S. 1176 (1986), that the failure to raise a Caldwell claim in a prior habeas petition was an abuse of the writ, see 28 U. S. C. § 2254 Rule 9(b). According to the Court of Appeals, “[t]hat a competent attorney should have been aware of this claim is apparent from the Supreme Court’s Caldwell opinion.” 774 F. 2d, at 98.

Although petitioners allege in their brief that respondent’s failure to raise a Caldwell claim in his first federal habeas petition constitutes an abuse of the writ, we need not address this contention given our resolution of the ease on procedural bar grounds.

4 We do not decide whether in fact the jury as instructed in this case was misinformed of its role under Florida law. The petition for certiorari did not raise this issue, and the merit of respondent’s Caldwell claim is irrelevant to our disposition of the case.

5 Both of these cases were cited in Caldwell v. Mississippi, 472 U. S. 320, 334, n. 5 (1985), as support for the decision in that case.

6 Respondent asserts, as an alternative basis for upholding the judgment of the Court of Appeals, that the procedural bar on which the Florida Supreme Court relied is not “adequate” — that is, it has not been “consistently or regularly applied." Johnson v. Mississippi, 486 U. S. 578, 589 (1988). The Eleventh Circuit stated that “[i]t is doubtful. . . that an adequate and independent state-law ground is present in this case,” 816 F. 2d 1493, 1497 (1987), but went on to find that respondent had established cause and prejudice for his default.

First, respondent argues that under Florida law, claims based on major changes in constitutional law that occur after a defendant’s direct appeal are cognizable in a Rule 3.850 proceeding. Respondent contends that, in the words of the Eleventh Circuit, his “Caldwell claim is the very type of claim for which Florida created the Rule 3.850 procedure.” Ibid. But, given our conclusion that Caldwell does not excuse respondent’s procedural default, we can hardly fault the Florida Supreme Court for reaching a similar conclusion under its own procedural rules.

Second, respondent asserts, and the dissent agrees, that the Florida Supreme Court has failed to apply its procedural rule consistently and regularly because it has addressed the merits in several cases raising Caldwell claims on postconviction review. In the vast majority of cases, however, the Florida Supreme Court has faithfully applied its rule that claims not raised on direct appeal cannot be raised on postconviction review. See Bertolotti v. State, 534 So. 2d 386, 387, n. 2 (1988); Clark v. State, 533 So. 2d 1144, 1145 (1988); Jones v. Dagger, 533 So. 2d 290, 292 (1988); Woods v. State, 531 So. 2d 79, 83 (1988); Cave v. State, 529 So. 2d 293, 296 (1988); Preston v. State, 528 So. 2d 896, 899 (1988); Doyle v. State, 526 So. 2d 909, 911 (1988); Ford v. State, 522 So. 2d 345, 346 (1988), cert. pending No. 88-5582; Henderson v. Dugger, 522 So. 2d 835, 836, n. (1988); Tafero v. Dugger, 520 So. 2d 287, 289 (1988); Foster v. State, 518 So. 2d 901, 901-902 (1987), cert. denied, 487 U. S. 1240 (1988); Phillips v. Dugger, 515 So. 2d 227, 227-228 (1987); Copeland v. Wainwright, 505 So. 2d 425, 427-428, vacated on other grounds, 484 U. S. 807 (1987); Aldridge v. State, 503 So. 2d 1257, 1259 (1987); State v. Sireci, 502 So. 2d 1221, 1223-1224 (1987); Adams v. State, 484 So. 2d 1216, 1217, cert. denied, 475 U. S. 1103 (1986); Middleton v. State, 465 So. 2d 1218, 1226 (1985).

Moreover, the few cases that respondent and the dissent cite as ignoring procedural defaults do not convince us that the Florida Supreme Court fails to apply its procedural rule regularly and consistently. In Darden v. State, 475 So. 2d 217, 218 (1985), the only alleged default discussed by the court involved the failure to raise the Caldwell claim in a prior Rule 3.850 proceeding. In Mann v. State, 482 So. 2d 1360, 1362 (1986) (as construed in Mann v. Dugger, 844 F. 2d 1446, 1448, n. 4 (CA11 1988), cert. pending, No. 87-2073), the court did not even expressly mention the defendant’s Caldwell claim. In Combs v. State, 525 So. 2d 853, 856 (1988), the Florida court noted that “[i]n Caldwell, unlike the instant case, the defendant had objected to the Mississippi prosecutor’s comment,” while in Daugherty v. State, 533 So. 2d 287, 288, cert. denied, 488 U. S. 959 (1988), the court merely relied on Combs. Finally, in Glock v. Dugger, 537 So. 2d 99, 102 (1989), the court merely stated that “the trial court was justified in summarily denying relief” on the petitioner’s 16 claims; it is not clear from the opinion whether the trial court held that the Caldivell claim was or was not procedurally barred. Regardless of whether any of these cases might be subject to federal habeas review because of the lack of a plain statement that the decision was based on state-law grounds, an issue we considered in Harris v. Reed, ante, p. 255, we do not believe that they are sufficient to undercut the adequacy of the Florida procedural rule.

Respondent also argues that we should overlook his procedural default because failing to do so would result in a “fundamental miscarriage of justice.” We disagree. In Murray v. Carrier, 477 U. S. 478, 496 (1986), this Court stated that “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” We made clear, however, that such a ease would be an “extraordinary" one, idl'd., and have since recognized the difficulty of translating the concept of “actual” innocence from the guilt phase to the sentencing phase of a capital trial, Smith v. Murray, 477 U. S. 527, 537 (1986). We do not undertake here to define what it means to be “actually innocent” of a death sentence. But it is clear to us that the fact that the trial judge in this case found an equal number of aggravating and mitigating circumstances is not sufficient to show that an alleged error in instructing the jury on sentencing resulted in a fundamental miscarriage of justice.

The dissent “assume[s], arguendo," that a fundamental miscarriage of justice results whenever “there is a substantial claim that the constitutional violation undermined the accuracy of the sentencing decision.” Post, at 415, n. 4. According to the dissent, since “the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined," post, at 423, the standard for showing a fundamental miscarriage of justice necessarily is satisfied. We reject this overbroad view. Demonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is “actually innocent” of the sentence he or she received. The approach taken by the dissent would turn the case in which an error results in a fundamental miscarriage of justice, the “extraordinary case,” Carrier, supra, at 496, into an all too ordinary one.