Oregon v. Guzek

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

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 Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

OREGON v. GUZEK

CERTIORARI TO THE SUPREME COURT OF OREGON

No. 04–928. Argued December 7, 2005—Decided February 22, 2006
At the guilt phase of respondent Guzek’s capital murder trial, his
mother was one of two witnesses who testified that he had been with
her on the night the crime was committed. He was convicted and
sentenced to death. Twice, the Oregon Supreme Court vacated the
sentence and ordered new sentencing proceedings, but each time
Guzek was again sentenced to death. Upon vacating his sentence for
a third time, the State Supreme Court held that the Eighth and
Fourteenth Amendments provide Guzek a federal constitutional right
to introduce live alibi testimony from his mother at the upcoming re-
sentencing proceeding. After this Court granted certiorari, Guzek
filed a motion to dismiss the writ as improvidently granted.
Held:
1. Guzek’s motion to dismiss certiorari is denied. This Court does
not lack jurisdiction on the ground that, irrespective of federal law,
state law gives Guzek the right to introduce his mother’s live testi-
mony. The Court possesses jurisdiction to review state-court deter-
minations that rest upon federal law, 28 U. S. C. §1257(a), and the
Oregon Supreme Court based its legal conclusion in relevant part on
such law. It pointed out that relevant mitigating evidence under
state law refers only to evidence that the Federal Constitution grants
a defendant the right to present. And it interpreted the federal ad-
missibility requirement in Lockett v. Ohio, 438 U. S. 586, 604 (plural-
ity opinion), and Green v. Georgia, 442 U. S. 95 (per curiam), to in-
clude evidence like the proffered alibi testimony. Nor is this Court
willing to dismiss the writ on the ground that irrespective of federal
law and of the State Supreme Court’s federal holding, Oregon’s capi-
tal-case resentencing statute gives Guzek the right to introduce wit-
nesses who testified at the guilt phase. At most, state law might give
him such a right, but “a possible adequate and independent state
2 OREGON v. GUZEK

Syllabus

ground” for a decision does not “bar . . . reaching the federal ques-
tions” where, as here, the State Supreme Court’s decision “quite
clearly rested . . . solely on the Federal Constitution.” California v.
Ramos, 463 U. S. 992, 997, n. 7. Pp. 2–5.
2. The Constitution does not prohibit a State from limiting the in-
nocence-related evidence a capital defendant can introduce at a sen-
tencing proceeding to the evidence introduced at the original trial.
This Court’s cases have not interpreted the Eighth Amendment as
providing such a defendant the right to introduce at sentencing evi-
dence designed to cast “residual doubt” on his guilt of the basic crime
of conviction. Franklin v. Lynaugh, 487 U. S. 164, 173, n. 6 (plurality
opinion). Lockett v. Ohio, supra, and Green v. Georgia, supra, distin-
guished. Even if such a right existed, it could not extend so far as to
provide Guzek with a right to introduce the evidence at issue. The
Eighth Amendment insists upon “ ‘ reliability in the determination
that death is the appropriate punishment in a specific case,’ ” Penry v.
Lynaugh, 492 U. S. 302, 328, and that a sentencing jury be able “to
consider and give effect to mitigating evidence” about the defendant’s
“character or record or the circumstances of the offense,” id., at 327–
328, but it does not deprive the State of its authority to set reason-
able limits on the evidence a defendant can submit, and to control the
manner in which it is submitted. Three circumstances, taken to-
gether, show that the State has the authority to regulate Guzek’s
evidence through exclusion. First, sentencing traditionally concerns
how, not whether, a defendant committed the crime, but alibi evi-
dence concerns only whether, not how, he did so. Second, the parties
previously litigated the issue to which the evidence is relevant. Thus,
the evidence attacks a previously determined matter in a proceeding
at which, in principle, that matter is not at issue. The law typically
discourages such collateral attacks. Cf. Allen v. McCurry, 449 U. S.
90, 94. Third, the negative impact of a rule restricting Guzek’s abil-
ity to introduce new alibi evidence is minimized by the fact that Ore-
gon law gives the defendant the right to present to the sentencing
jury all the innocence evidence from the original trial (albeit through
transcripts). The Oregon courts are free to consider on remand
whether Guzek is entitled to introduce his mother’s testimony to im-
peach other witnesses whose earlier testimony the government in-
tends to introduce at resentencing. Pp. 5–9.
336 Ore. 424, 86 P. 3d 1106, vacated and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined.
SCALIA, J., filed an opinion concurring in the judgment, in which THO-
MAS, J., joined. ALITO, J., took no part in the consideration or decision of
the case.
 Cite as: 546 U. S. ____ (2006) 1

Opinion of the Court

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. 04–928
_________________

OREGON, PETITIONER v. RANDY LEE GUZEK
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
OREGON
[February 22, 2006]

JUSTICE BREYER delivered the opinion of the Court.
Respondent Randy Lee Guzek was found guilty of capi-
tal murder and sentenced to death. On appeal, the Ore-
gon Supreme Court affirmed the conviction but vacated
the sentence and ordered a new sentencing proceeding.
The question before the Court is whether the State may
limit the innocence-related evidence he can introduce at
that proceeding to the evidence he introduced at his origi-
nal trial. We hold that the limitation does not violate the
Constitution.
I
Oregon tried Guzek for the offense of capital murder.
The evidence showed that Guzek and two associates de-
cided to burglarize the Houser family home, that they
entered the house, that an associate killed Rod Houser,
and that Guzek then robbed and killed Lois Houser. After
the police learned that Guzek held a special grudge
against the Housers, they traced him and his associates.
The associates confessed. And they testified at trial,
painting Guzek as the ringleader.
Guzek’s defense rested in part upon an alibi. He pre-
sented two alibi witnesses, his grandfather and his
2 OREGON v. GUZEK

Opinion of the Court

mother, who testified that Guzek had been with the one or
the other at the time of the crime. The jury disbelieved
the alibi, it convicted Guzek, and it sentenced him to
death.
Guzek appealed; the Oregon Supreme Court affirmed
the conviction; but the court ordered a new sentencing
proceeding. Guzek was again sentenced to death; he again
appealed; and the Oregon Supreme Court again ordered
resentencing. Guzek was sentenced to death for the third
time; he again appealed; and yet again the Oregon Su-
preme Court found the sentencing procedures faulty.
Seeking to avoid further errors at the next (the fourth)
sentencing proceeding, the Oregon Supreme Court also
addressed the admissibility of certain evidence Guzek
seeks to introduce at that proceeding, including live testi-
mony from his mother about his alibi.
The Oregon Supreme Court held that the Eighth and
Fourteenth Amendments provide Guzek a federal consti-
tutional right to introduce this evidence at his upcoming
sentencing proceeding. At Oregon’s request, we agreed to
review that determination. 544 U. S. ___ (2005).
II
Before turning to the merits of Oregon’s claim, we con-
sider a motion that Guzek made, asking us to dismiss the
writ of certiorari as improvidently granted. The motion
rests upon Guzek’s claim that, irrespective of federal law,
state law gives him the right to introduce his mother’s live
testimony—the additional alibi evidence here at issue.
See Ore. Rev. Stat. §138.012(2)(b) (2003). For this reason,
he says, the Court lacks jurisdiction to hear this appeal,
or, at the least, there is no good practical reason for us to
decide the federal issue.
We cannot agree, however, that we lack jurisdiction to
hear the case. We possess jurisdiction to review state-
court determinations that rest upon federal law. 28
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Opinion of the Court

U. S. C. §1257(a). And the Oregon Supreme Court here
based its legal conclusion in relevant part on federal law.
The court pointed out that state law permits the introduc-
tion (at a new sentencing hearing) of “ ‘evidence . . . rele-
vant to [the] sentence including . . . mitigating evidence
relevant to . . . [w]hether the defendant should receive a
death sentence.’ ” App. to Pet. for Cert. 45 (quoting Ore.
Rev. Stat. §§163.150(1)(a), (b) (2003); emphasis added and
deleted). But it immediately added that the state law’s
words “relevant . . . mitigating evidence” refer (in the
present context) only to evidence that the Federal Consti-
tution grants a defendant the right to present. App. to
Pet. for Cert. 45–52.
The Oregon court went on to discuss this Court’s state-
ments to the effect that the Eighth and Fourteenth
Amendments “ ‘require that the sentencer . . . not be pre-
cluded from considering, as a mitigating factor . . . any of
the circumstances of the offense that the defendant prof-
fers as a basis for a sentence less than death.’ ” Id., at 54
(quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality
opinion); emphasis deleted); cf. App. to Pet. for Cert. 56
(recognizing that this aspect of Lockett was adopted by a
majority of the Court in Eddings v. Oklahoma, 455 U. S.
104, 110 (1982)). And the Oregon court then interpreted
this Court’s holding in Green v. Georgia, 442 U. S. 95 (1979)
(per curiam), as including, within that federal admissibil-
ity requirement, evidence which, like the proffered alibi
testimony, tends to show that the defendant did not com-
mit the crime for which he has been convicted. Thus, it
held that state law demanded “admissibility” solely for a
federal reason. And we possess jurisdiction. See, e.g.,
South Dakota v. Neville, 459 U. S. 553, 556, n. 5 (1983);
Delaware v. Prouse, 440 U. S. 648, 651–653 (1979).
Neither are we persuaded by Guzek’s argument that we
should dismiss the case because irrespective of federal law
and irrespective of the Oregon Supreme Court’s federal
4 OREGON v. GUZEK

Opinion of the Court

holding, Oregon law gives him the right to introduce wit-
nesses who testified at the guilt phase; and his mother
was such a witness (a fact, he says, that the Oregon Su-
preme Court overlooked). Guzek points in support to an
Oregon capital-case resentencing statute that says,
“[a] transcript of all testimony and all exhibits and
other evidence properly admitted in the prior trial . . .
are admissible in the new sentencing proceeding.”
Ore. Rev. Stat. §138.012(2)(b) (2003).
The provision adds that,
“[e]ither party may recall any witness who testified at
the prior trial . . . and may present additional relevant
evidence.” Ibid.
We do not doubt that these provisions give Guzek the
state–law right to introduce a transcript of guilt-phase
testimony. App. to Pet. for Cert. 43 (authorizing introduc-
tion of transcript of Guzek’s grandfather’s alibi testimony).
But Guzek wishes to do more than introduce a transcript
of his mother’s alibi evidence; he wishes to call his mother
to the stand as a live witness and elicit additional alibi
testimony. Tr. of Oral Arg. 37–39, 41, 55–56. The Oregon
statute quoted above does not expressly say whether he
may do so. It does give him the right to “recall any wit-
ness” who testified at the first trial and to “present addi-
tional relevant evidence.” (Emphasis added.) But is this
additional evidence “relevant”? The Oregon Supreme
Court thought so, but only because federal law insists
upon its relevance. And its opinion suggests that, in the
absence of federal compulsion, it would not fall within the
scope of the state statutory word “relevant.” See supra, at
3.
At most, Guzek has shown that state law might, not that
it does, independently give him the right to introduce this
evidence. We have made clear that “a possible adequate
and independent state ground” for a decision does not “bar
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Opinion of the Court

[our] reaching the federal questions” where, as here, a
“State Supreme Court quite clearly rested its [decision]
solely on the Federal Constitution.” California v. Ramos,
463 U. S. 992, 997, n. 7 (1983); see also City of Revere v.
Massachusetts Gen. Hospital, 463 U. S. 239, 242 (1983);
United Air Lines, Inc. v. Mahin, 410 U. S. 623, 630–631
(1973). And we consequently deny the motion to dismiss the
writ.
III
As our discussion in Part II, supra, makes clear, the
federal question before us is a narrow one. Do the Eighth
and Fourteenth Amendments grant Guzek a constitu-
tional right to present evidence of the kind he seeks to
introduce, namely new evidence that shows he was not
present at the scene of the crime. That evidence is incon-
sistent with Guzek’s prior conviction. It sheds no light on
the manner in which he committed the crime for which he
has been convicted. Nor is it evidence that Guzek con-
tends was unavailable to him at the time of the original
trial. And, to the extent it is evidence he introduced at
that time, he is free to introduce it now, albeit in tran-
script form. Ore. Rev. Stat. §138.012(2)(b) (2003). We can
find nothing in the Eighth or Fourteenth Amendments
that provides a capital defendant a right to introduce new
evidence of this kind at sentencing.
We cannot agree with the Oregon Supreme Court that
our previous cases have found in the Eighth Amendment a
constitutional right broad enough to encompass the evi-
dence here at issue. In Lockett v. Ohio, supra, a plurality
of this Court decided that a defendant convicted of acting
in concert with others to rob and to kill could introduce at
the sentencing stage evidence that she had played a minor
role in the crime, indeed, that she had remained outside
the shop (where the killing took place) at the time of the
crime. A plurality of the Court wrote that,
6 OREGON v. GUZEK

Opinion of the Court

“the Eighth and Fourteenth Amendments require that
the sentencer . . . not be precluded from considering,
as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sen-
tence less than death.” Id., at 604 (emphasis added
and deleted).
And in Eddings v. Oklahoma, 455 U. S. 104, the Court
majority adopted this statement. See also McCleskey v.
Kemp, 481 U. S. 279, 306 (1987); Bell v. Ohio, 438 U. S. 637,
642 (1978) (plurality opinion).
But the evidence at issue in these cases was traditional
sentence-related evidence, evidence that tended to show
how, not whether, the defendant committed the crime.
Nor was the evidence directly inconsistent with the jury’s
finding of guilt.
The Oregon Supreme Court thought that this latter
distinction—the fact that the “alibi evidence was inconsis-
tent with,” rather than “consistent with[,] the underlying
convictions”—did not matter. App. to Pet. for Cert. 58. It
said that this “factual distinction . . . is of no consequence
in light of the Supreme Court’s decision in Green v. Geor-
gia.” Ibid. In Green, however, the Court focused upon a
defendant convicted of murder, who sought to introduce at
sentencing a statement his confederate made to a third
party that he (the confederate) had alone committed the
murder (i.e., without the defendant). The State opposed
its use at the defendant’s sentencing hearing on the
ground that, as to the defendant, it was hearsay. The
Court, in a brief per curiam opinion, noted that the State
had used the confession in the confederate’s trial, referred
to an earlier case holding that the Constitution forbids
States from “ ‘mechanistically’ ” applying the hearsay rule
“ ‘to defeat the ends of justice,’ ” and held that the Consti-
tution prohibited the State from barring use of the confes-
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Opinion of the Court

sion. 442 U. S., at 97 (quoting Chambers v. Mississippi, 410
U. S. 284, 302 (1973)). The opinion focused only upon the
hearsay problem, and it implicitly assumed that, in the
absence of the hearsay problem, state law would not have
blocked admission of the evidence.
In any event, subsequent to Green, this Court decided
Franklin v. Lynaugh, 487 U. S. 164 (1988) (plurality opin-
ion), and that case makes clear, contrary to the Oregon
Supreme Court’s understanding, that this Court’s previous
cases had not interpreted the Eighth Amendment as pro-
viding a capital defendant the right to introduce at sen-
tencing evidence designed to cast “residual doubt” on his
guilt of the basic crime of conviction. The Franklin plural-
ity said it was “quite doubtful” that any such right existed.
Id., at 173, n. 6. And two other Members of the Court
added that “[o]ur cases” do not support any such “right to
reconsideration by the sentencing body of lingering doubts
about . . . guilt.” Id., at 187 (O’Connor, J., concurring in
judgment). See also Penry v. Lynaugh, 492 U. S. 302, 320
(1989) (characterizing Franklin as a case in which a major-
ity “agreed that ‘residual doubt’ as to Franklin’s guilt was
not a constitutionally mandated mitigating factor” (brack-
ets omitted)).
Franklin did not resolve whether the Eighth Amend-
ment affords capital defendants such a right, for the plu-
rality held that the sentencing scheme at issue was consti-
tutional “even if such a right existed.” 487 U. S., at 174.
But the Court’s statements on the matter make clear that
the Oregon Supreme Court erred in interpreting Green as
providing a capital defendant with a constitutional right to
introduce residual doubt evidence at sentencing.
In this case, we once again face a situation where we
need not resolve whether such a right exists, for, even if it
does, it could not extend so far as to provide this defendant
with a right to introduce the evidence at issue. See, e.g.,
Alabama State Federation of Labor v. McAdory, 325 U. S.
8 OREGON v. GUZEK

Opinion of the Court

450, 461–462 (1945). The Eighth Amendment insists upon
“ ‘reliability in the determination that death is the appro-
priate punishment in a specific case.’ ” Penry, supra, at 328
(quoting Woodson v. North Carolina, 428 U. S. 280, 305
(1976) (plurality opinion)). The Eighth Amendment also
insists that a sentencing jury be able “to consider and give
effect to mitigating evidence” about the defendant’s “char-
acter or record or the circumstances of the offense.” Penry,
supra, at 327–328. But the Eighth Amendment does not
deprive the State of its authority to set reasonable limits
upon the evidence a defendant can submit, and to control
the manner in which it is submitted. Rather, “States are
free to structure and shape consideration of mitigating
evidence ‘in an effort to achieve a more rational and equita-
ble administration of the death penalty.’ ” Boyde v. Califor-
nia, 494 U. S. 370, 377 (1990) (quoting Franklin, supra, at
181 (plurality opinion)); see, e.g., Johnson v. Texas, 509 U. S.
350, 362 (1993); California v. Brown, 479 U. S. 538, 543
(1987).
Three circumstances, taken together, convince us that
the State possesses the authority to regulate, through
exclusion, the evidence that Guzek seeks to present. First,
sentencing traditionally concerns how, not whether, a
defendant committed the crime. See United States Sen-
tencing Commission, Guidelines Manual §1A1.1, editorial
note, §4(a), p. 4 (Nov. 2004). But the evidence at issue
here—alibi evidence—concerns only whether, not how, he
did so.
Second, the parties previously litigated the issue to
which the evidence is relevant—whether the defendant
committed the basic crime. The evidence thereby attacks
a previously determined matter in a proceeding at which,
in principle, that matter is not at issue. The law typically
discourages collateral attacks of this kind. Cf. Allen v.
McCurry, 449 U. S. 90, 94 (1980) (“As this Court and other
courts have often recognized, res judicata and collateral
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Opinion of the Court

estoppel relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudication”).
Third, the negative impact of a rule restricting defen-
dant’s ability to introduce new alibi evidence is minimized
by the fact that Oregon law gives the defendant the right
to present to the sentencing jury all the evidence of inno-
cence from the original trial regardless. That law permits
the defendant to introduce at resentencing transcripts and
exhibits from his prior trial. Ore. Rev. Stat. §138.012(2)(b)
(2003). The defendant here has not claimed that the
evidence at issue was unavailable at the time of his origi-
nal trial. Thus, he need only have introduced it at that
time to guarantee its presentation (albeit through tran-
scripts) to a resentencing jury as well.
The legitimacy of these trial management and eviden-
tiary considerations, along with the typically minimal
adverse impact that a restriction would have on a defen-
dant’s ability to present his alibi claim at resentencing
convinces us that the Eighth Amendment does not protect
defendant’s right to present the evidence at issue here.
We conclude that the Oregon court was wrong in holding
to the contrary.
IV
Guzek also contends that, even if the Eighth and Four-
teenth Amendments do not mandate the admission of his
mother’s testimony, he is entitled to introduce that evi-
dence to impeach his associates, whose earlier testimony
the government intends to introduce at resentencing. The
Oregon Supreme Court did not address this issue; nor do
we believe it fairly encompassed within the question pre-
sented. The Oregon courts are free to consider it on re-
mand should they believe it appropriate to do so.
10 OREGON v. GUZEK

Opinion of the Court

V
For these reasons, we vacate the judgment of the Ore-
gon Supreme Court, and we remand the case for proceed-
ings not inconsistent with this opinion.
It is so ordered.

JUSTICE ALITO took no part in the consideration or
decision of this case.
 Cite as: 546 U. S. ____ (2006) 1

SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 04–928
_________________

OREGON, PETITIONER v. RANDY LEE GUZEK
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
OREGON
[February 22, 2006]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in the judgment.
In this case, we have the opportunity to put to rest, once
for all, the mistaken notion that the Eighth Amendment
requires that a convicted capital defendant be given the
opportunity, at his sentencing hearing, to present evidence
and argument concerning residual doubts about his guilt.
Although the Court correctly holds that there is no Eighth
Amendment violation in this case, I would follow the
Court’s logic to its natural conclusion and reject all Eighth
Amendment residual-doubt claims.
I agree with the Court that we have jurisdiction and
should exercise it in this case. What requires me to with-
hold agreement to the Court’s opinion is the last of the
“[t]hree circumstances” on which it relies, ante, at 8–9—
namely, “the fact that Oregon law gives the defendant the
right to present to the sentencing jury all the evidence of
innocence from the original trial.” Ante, at 9 (emphasis in
original). The first two of the circumstances are alone
sufficient to dispose of the claim that the Eighth Amend-
ment guarantees a capital defendant a second opportunity,
at sentencing, to litigate his innocence. In fact, the
Court’s third “circumstance” is an analytical misfit in the
company of the other two. The first two—that “sentencing
traditionally concerns how, not whether, a defendant
committed the crime,” ante, at 8, and that “the parties
2 OREGON v. GUZEK

SCALIA, J., concurring in judgment

previously litigated the issue to which the evidence is
relevant,” ibid.—show that compelling the admission of
innocence-related evidence would be improper and unnec-
essary at a sentencing hearing. The third, by contrast,
suggests that there is no constitutional violation in this
case because enough of such evidence may be admitted on
remand. The latter factor would be relevant only if the
former two were not.
If we needed any third factor to justify our holding, a
better candidate would be that the claim we consider here
finds no support in our Nation’s legal history and tradi-
tions. In 1986, Justice Marshall correctly observed that
there had been “few times in which any legitimacy has
been given to the power of a convicted capital defendant
facing the possibility of a death sentence to argue as a
mitigating factor the chance that he might be innocent.”
Lockhart v. McCree, 476 U. S. 162, 205 (dissenting opin-
ion). Nothing has changed on that score in the last 20
years. On the contrary, in Franklin v. Lynaugh, 487 U. S.
164 (1988), four Members of this Court noted that our
“prior decisions . . . fail to recognize a constitutional right
to have such doubts considered as a mitigating factor,” id.,
at 174 (plurality opinion). They were, moreover, “quite
doubtful” that the purported right existed, because it is
“arguably inconsistent with the common practice of allow-
ing penalty-only trials on remand of cases where a death
sentence—but not the underlying conviction—is struck
down on appeal.” Id., at 173, n. 6. Two other Members of
the Court would have rejected the claim outright. Id., at
187 (O’Connor, J., concurring in judgment).
After Franklin, the lower courts have unanimously
denied constitutional claims like the one we consider
today. See, e.g., Ziegler v. Crosby, 345 F. 3d 1300, 1310
(CA11 2003); Evans v. Thompson, 881 F. 2d 117, 121 (CA4
1989); Duest v. State, 855 So. 2d 33, 40–41 (Fla. 2003);
Commonwealth v. Fisher, 572 Pa. 105, 115–116, 813 A. 2d
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SCALIA, J., concurring in judgment

761, 767 (2002); People v. Emerson, 189 Ill. 2d 436, 501–
504, 727 N. E. 2d 302, 338–339 (2000); State v. Fletcher,
354 N. C. 455, 470–472, 555 S. E. 2d 534, 544 (2001);
Melson v. State, 775 So. 2d 857, 898–899 (Ala. Crim. App.
1999). The last apparent scrap of authority for the con-
trary view came from our cryptic opinion in Green v. Geor-
gia, 442 U. S. 95 (1979) (per curiam), on which the Oregon
Supreme Court principally relied. See App. to Pet. for
Cert. 58–62. The chief virtue of today’s opinion lies in its
discarding the notion that Green provides any support for
an Eighth Amendment right to argue residual doubt at
sentencing. See ante, at 6–7.
In mentioning, however, the superfluous circumstance
that Oregon law happens to provide for the admission at
sentencing of some evidence that relates to innocence, the
Court risks creating doubt where none should exist. Capi-
tal defendants might now be tempted to argue that the
amount of residual-doubt evidence carried over from
the guilt phase in their sentencing hearings is insufficient
to satisfy the Court’s third factor. Every one of these
“residual-doubt” claims will be meritless in light of the
Court’s first two factors. We should make this perfectly
clear today.