(Slip Opinion) OCTOBER TERM, 2004 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
BRADSHAW, WARDEN v. STUMPF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 04–637. Argued April 19, 2005—Decided June 13, 2005
Respondent Stumpf and his accomplice Wesley committed an armed
robbery that left Mr. Stout wounded and Mrs. Stout dead. Stumpf
admitted shooting Mr. Stout but has always denied killing Mrs.
Stout. In Ohio state court proceedings, Stumpf pleaded guilty to,
among other things, aggravated murder and one of three capital
murder specifications charged in his indictment. This left Stumpf
eligible for the death penalty. In a contested penalty hearing before a
three-judge panel, Stumpf ’s principal mitigation arguments were
that he had participated in the robbery at Wesley’s urging, that
Wesley had killed Mrs. Stout, and that Stumpf ’s minor role in the
murder counseled against the death sentence. The State, however,
claimed that Stumpf had shot Mrs. Stout, and that he therefore was
the principal offender in her murder. In the alternative, the State
noted that even an accomplice can be sentenced to death under Ohio
law if he acted with the specific intent to cause death, and the State
argued that such intent could be inferred from the circumstances of
the robbery regardless of who actually shot Mrs. Stout. The panel
concluded that Stumpf was the principal offender and sentenced him
to death. At Wesley’s subsequent jury trial, however, the State pre-
sented evidence that Wesley had admitted to shooting Mrs. Stout.
But Wesley argued that the prosecutor had taken a contrary position
in Stumpf ’s trial, and Wesley was sentenced to life in prison with the
possibility of parole. After Wesley’s trial, Stumpf moved to withdraw
his own plea or vacate his death sentence, arguing that the evidence
endorsed by the State in Wesley’s trial cast doubt on Stumpf ’s convic-
tion and sentence. This time, however, the prosecutor emphasized
other evidence confirming Stumpf as the shooter and again raised, in
the alternative, the aider-and-abettor theory. The court denied
2 BRADSHAW v. STUMPF
Syllabus
Stumpf ’s motion, and Ohio’s appellate courts affirmed. Subse-
quently, the Federal District Court denied Stumpf habeas relief, but
the Sixth Circuit reversed on two grounds. First, the Sixth Circuit
found that Stumpf had not understood that specific intent to cause
death was a necessary element of the aggravated murder charge, and
that his guilty plea therefore had not been knowing, voluntary, and
intelligent. Second, the court found that the conviction and sentence
could not stand because the State had secured convictions of both
Stumpf and Wesley for the same crime, using inconsistent theories.
Held:
1. The Sixth Circuit erred in concluding that Stumpf was unin-
formed of the aggravated murder charge’s specific intent element.
While a guilty plea is invalid if the defendant has not been informed
of the crime’s elements, Stumpf ’s attorneys represented at his plea
hearing that they had explained the elements to their client, and
Stumpf confirmed that the representation was true. This Court has
never held that the judge must himself explain a crime’s elements to
the defendant. Rather, constitutional requirements may be satisfied
where the record accurately reflects that the charge’s nature and the
crime’s elements were explained to the defendant by his own, compe-
tent counsel. Stumpf argues that his plea was so inconsistent with
his denial of having shot Mrs. Stout that he could only have pleaded
guilty out of ignorance of the aggravated murder charge’s specific in-
tent element. But that argument fails because Stumpf ’s conviction
did not require a showing that Stumpf had shot Mrs. Stout. Ohio law
also considers aiders and abettors who act with specific intent to
cause death liable for aggravated murder. Stumpf and Wesley en-
tered the Stout home with guns, intending to commit armed robbery,
and Stumpf admitted shooting Mr. Stout. Taken together, these facts
could show that the two men had agreed to kill both Stouts, which in
turn could make both men guilty of aggravated murder regardless of
who shot Mrs. Stout. Stumpf ’s claim that he and his attorneys were
confused about the relevance and timing of defenses that they
planned to make is not supported by the record. Finally, the plea’s
validity may not be collaterally attacked on the ground that Stumpf
made what he now claims was a bad deal. Pp. 6–10.
2. The Sixth Circuit was also wrong to hold that prosecutorial in-
consistencies between the Stumpf and Wesley cases required voiding
Stumpf ’s guilty plea. The precise identity of the triggerman was im-
material to Stumpf ’s aggravated murder conviction, and Stumpf has
never explained how the prosecution’s postplea use of inconsistent
arguments could have affected the knowing, voluntary, and intelli-
gent nature of his plea. P. 11.
3. The prosecutor’s use of allegedly inconsistent theories may have
Cite as: 545 U. S. ____ (2005) 3
Syllabus
a more direct effect on Stumpf ’s sentence, however, for it is arguable
that the sentencing panel’s conclusion about his role was material to
its sentencing determination. The opinion below leaves some ambi-
guity as to the overlap between how the lower court resolved
Stumpf ’s due process challenge to his conviction and how it resolved
his challenge to his sentence. It is not clear whether the Court of Ap-
peals would have found Stumpf entitled to resentencing had it not
also considered the conviction invalid. Likewise, the parties’ briefing
here, and the question on which this Court granted certiorari, largely
focused on the conviction. In these circumstances, it would be prema-
ture for this Court to resolve the merits of Stumpf ’s sentencing claim
before giving the Sixth Circuit the opportunity to consider in the first
instance the question of how the prosecutor’s conduct in the Stumpf
and Wesley cases related to Stumpf ’s death sentence in particular.
Pp. 11–12.
367 F. 3d 594, reversed in part, vacated in part, and remanded.
O’CONNOR, J., delivered the opinion for a unanimous Court. SOUTER,
J., filed a concurring opinion in which GINSBURG, J., joined. THOMAS, J.,
filed a concurring opinion, in which SCALIA, J., joined.
Cite as: 545 U. S. ____ (2005) 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. 04–637
_________________
MARGARET BRADSHAW, WARDEN, PETITIONER v.
JOHN DAVID STUMPF
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 13, 2005]
JUSTICE O’CONNOR delivered the opinion of the Court.
This case concerns respondent John David Stumpf ’s
conviction and death sentence for the murder of Mary
Jane Stout. In adjudicating Stumpf ’s petition for a writ of
habeas corpus, the United States Court of Appeals for the
Sixth Circuit granted him relief on two grounds: that his
guilty plea was not knowing, voluntary, and intelligent,
and that his conviction and sentence could not stand
because the State, in a later trial of Stumpf ’s accomplice,
pursued a theory of the case inconsistent with the theory
it had advanced in Stumpf ’s case. We granted certiorari
to review both holdings. 543 U. S. ___ (2005).
I
On May 14, 1984, Stumpf and two other men, Clyde
Daniel Wesley and Norman Leroy Edmonds, were travel-
ing in Edmonds’ car along Interstate 70 through Guernsey
County, Ohio. Needing money for gas, the men stopped
the car along the highway. While Edmonds waited in the
car, Stumpf and Wesley walked to the home of Norman
and Mary Jane Stout, about 100 yards away. Stumpf and
Wesley, each concealing a gun, talked their way into the
2 BRADSHAW v. STUMPF
Opinion of the Court
home by telling the Stouts they needed to use the phone.
Their real object, however, was robbery: Once inside,
Stumpf held the Stouts at gunpoint, while Wesley ran-
sacked the house. When Mr. Stout moved toward Stumpf,
Stumpf shot him twice in the head, causing Mr. Stout to
black out. After he regained consciousness, Mr. Stout
heard two male voices coming from another room, and
then four gunshots—the shots that killed his wife. Ed-
monds was arrested shortly afterward, and his statements
led the police to issue arrest warrants for Stumpf and
Wesley. Stumpf, who surrendered to the police, at first
denied any knowledge of the crimes. After he was told
that Mr. Stout had survived, however, Stumpf admitted to
participating in the robbery and to shooting Mr. Stumpf.
But he claimed not to have shot Mrs. Stout, and he has
maintained that position ever since.
The proceedings against Stumpf occurred while Wesley,
who had been arrested in Texas, was still resisting extra-
dition to Ohio. Stumpf was indicted for aggravated mur-
der, attempted aggravated murder, aggravated robbery,
and two counts of grand theft. With respect to the aggra-
vated murder charge, the indictment listed four statutory
“specifications”—three of them aggravating circumstances
making Stumpf eligible for the death penalty. See App.
117–118; Ohio Rev. Code Ann. §2929.03 (Anderson 1982).*
The case was assigned to a three-judge panel in the Court
of Common Pleas.
Rather than proceed to trial, however, Stumpf and the
State worked out a plea agreement: Stumpf would plead
guilty to aggravated murder and attempted aggravated
murder, and the State would drop most of the other
charges; with respect to the aggravated murder charge,
——————
* Unless otherwise noted, all citations to Ohio statutes refer to the
versions of those statutes in effect in 1984, at the time of the crime and
trial.
Cite as: 545 U. S. ____ (2005) 3
Opinion of the Court
Stumpf would plead guilty to one of the three capital
specifications, with the State dropping the other two. The
plea was accepted after a colloquy with the presiding
judge, and after a hearing in which the panel satisfied
itself as to the factual basis for the plea.
Because the capital specification to which Stumpf
pleaded guilty left him eligible for the death penalty, a
contested penalty hearing was held before the same three-
judge panel. Stumpf ’s mitigation case was based in part
on his difficult childhood, limited education, dependable
work history, youth, and lack of prior serious offenses.
Stumpf ’s principal argument, however, was that he had
participated in the plot only at the urging and under the
influence of Wesley, that it was Wesley who had fired the
fatal shots at Mrs. Stout, and that Stumpf ’s assertedly
minor role in the murder counseled against the death
sentence. See §2929.04(B)(6) (directing the sentencer to
consider as a potential mitigating circumstance, “[i]f the
offender was a participant in the offense but not the prin-
cipal offender, the degree of the offender’s participation in
the offense”). The State, on the other hand, argued that
Stumpf had indeed shot Mrs. Stout. Still, while the prose-
cutor claimed Stumpf ’s allegedly primary role in the
shooting as a special reason to reject Stumpf ’s mitigation
argument, the prosecutor also noted that Ohio law did not
restrict the death penalty to those who commit murder by
their own hands—an accomplice to murder could also
receive the death penalty, so long as he acted with the
specific intent to cause death. As a result, the State ar-
gued, Stumpf deserved death even if he had not personally
shot Mrs. Stout, because the circumstances of the robbery
provided a basis from which to infer Stumpf’s intent to
cause death. The three-judge panel, agreeing with the
State’s first contention, specifically found that Stumpf
“was the principal offender” in the aggravated murder of
Mrs. Stout. App. 196. Determining that the aggravating
4 BRADSHAW v. STUMPF
Opinion of the Court
factors in Stumpf ’s case outweighed any mitigating fac-
tors, the panel sentenced Stumpf to death.
Afterward, Wesley was successfully extradited to Ohio
to stand trial. His case was tried to a jury, before the
same judge who had presided over the panel overseeing
Stumpf ’s proceedings, and with the same prosecutor. This
time, however, the prosecutor had new evidence: James
Eastman, Wesley’s cellmate after his extradition, testified
that Wesley had admitted to firing the shots that killed
Mrs. Stout. The prosecutor introduced Eastman’s testi-
mony in Wesley’s trial, and in his closing argument he
argued for Wesley’s credibility and lack of motive to lie.
The prosecutor claimed that Eastman’s testimony, com-
bined with certain circumstantial evidence and with the
implausibility of Wesley’s own account of events, proved
that Wesley was the principal offender in Mrs. Stout’s
murder—and that Wesley therefore deserved to be put to
death. One way Wesley countered this argument was by
noting that the prosecutor had taken a contrary position
in Stumpf ’s trial, and that Stumpf had already been sen-
tenced to death for the crime. Wesley also took the stand
in his own defense, and testified that Stumpf had shot
Mrs. Stout. In the end, the jury sentenced Wesley to life
imprisonment with the possibility of parole after 20 years.
After the Wesley trial, Stumpf, whose direct appeal was
still pending in the Ohio Court of Appeals, returned to the
Court of Common Pleas with a motion to withdraw his
guilty plea or vacate his death sentence. Stumpf argued
that Eastman’s testimony, and the prosecution’s endorse-
ment of that testimony in Wesley’s trial, cast doubt upon
Stumpf ’s conviction and sentence. The State (represented
again by the same prosecutor who had tried both Wesley’s
case and Stumpf ’s original case) disagreed. According to
the prosecutor, the court’s first task was to decide whether
the Eastman testimony was sufficient to alter the court’s
prior determination that Stumpf had been the shooter.
Cite as: 545 U. S. ____ (2005) 5
Opinion of the Court
Id., at 210. Contrary to the argument he had presented in
the Wesley trial, however, the prosecutor now noted that
Eastman’s testimony was belied by certain other evidence
(ballistics evidence and Wesley’s testimony in his own
defense) confirming Stumpf to have been the primary
shooter. In the alternative, the State noted as it had
before that an aider-and-abettor theory might allow the
death sentence to be imposed against Stumpf even if he
had not shot Mrs. Stout.
Although one judge speculated during oral argument
that the court’s earlier conclusion about Stumpf ’s princi-
pal role in the killing “may very well have had an effect
upon” the prior sentencing determination, ibid., the Court
of Common Pleas denied Stumpf ’s motion in a brief sum-
mary order without explanation. That order was appealed
together with the original judgment in Stumpf ’s case, and
the Ohio Court of Appeals affirmed, as did the Ohio Su-
preme Court. State v. Stumpf, 32 Ohio St. 3d 95, 512
N. E. 2d 598 (1987), cert. denied, 484 U. S. 1079 (1988).
After a subsequent request for state postconviction relief
was denied by the state courts, Stumpf filed this federal
habeas petition in the United States District Court for the
Southern District of Ohio in November 1995. The District
Court denied Stumpf relief, but granted permission to
appeal on four claims, including the two at issue here.
The United States Court of Appeals for the Sixth Circuit
reversed, concluding that habeas relief was warranted on
“either or both” of “two alternative grounds.” Stumpf v.
Mitchell, 367 F. 3d 594, 596 (2004). First, the court de-
termined that Stumpf ’s guilty plea was invalid because it
had not been entered knowingly and intelligently. More
precisely, the court concluded that Stumpf had pleaded
guilty to aggravated murder without understanding that
specific intent to cause death was a necessary element of
the charge under Ohio law. See Ohio Rev. Code Ann.
§§2903.01(B) and (D). Noting that Stumpf had all along
6 BRADSHAW v. STUMPF
Opinion of the Court
denied shooting Mrs. Stout, and considering those denials
inconsistent with an informed choice to plead guilty to
aggravated murder, the Court of Appeals concluded that
Stumpf must have entered his plea out of ignorance.
Second, the court concluded that “Stumpf ’s due process
rights were violated by the state’s deliberate action in
securing convictions of both Stumpf and Wesley for the
same crime, using inconsistent theories.” 367 F. 3d, at
596. This violation, the court held, required setting aside
“both Stumpf ’s plea and his sentence.” Id., at 616. One
member of the panel dissented.
II
Because Stumpf filed his habeas petition before enact-
ment of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), we review his claims under the stan-
dards of the pre-AEDPA habeas statute. See Lindh v.
Murphy, 521 U. S. 320 (1997). Moreover, because petitioner
has not argued that Stumpf ’s habeas claims were barred as
requiring announcement of a new rule, we do not apply the
rule of Teague v. Lane, 489 U. S. 288 (1989), to this case.
See Schiro v. Farley, 510 U. S. 222, 229 (1994); Godinez v.
Moran, 509 U. S. 389, 397, n. 8 (1993).
A
The Court of Appeals concluded that Stumpf ’s plea of
guilty to aggravated murder was invalid because he was
not aware of the specific intent element of the charge—a
determination we find unsupportable.
Stumpf ’s guilty plea would indeed be invalid if he had
not been aware of the nature of the charges against him,
including the elements of the aggravated murder charge to
which he pleaded guilty. A guilty plea operates as a
waiver of important rights, and is valid only if done volun-
tarily, knowingly, and intelligently, “with sufficient aware-
ness of the relevant circumstances and likely consequences.”
Cite as: 545 U. S. ____ (2005) 7
Opinion of the Court
Brady v. United States, 397 U. S. 742, 748 (1970). Where a
defendant pleads guilty to a crime without having been
informed of the crime’s elements, this standard is not met
and the plea is invalid. Henderson v. Morgan, 426 U. S. 637
(1976).
But the Court of Appeals erred in finding that Stumpf had
not been properly informed before pleading guilty. In
Stumpf ’s plea hearing, his attorneys represented on the
record that they had explained to their client the elements
of the aggravated murder charge; Stumpf himself then
confirmed that this representation was true. See App.
135, 137–138. While the court taking a defendant’s plea is
responsible for ensuring “a record adequate for any review
that may be later sought,” Boykin v. Alabama, 395 U. S.
238, 244 (1969), we have never held that the judge must
himself explain the elements of each charge to the defen-
dant on the record. Rather, the constitutional prerequi-
sites of a valid plea may be satisfied where the record
accurately reflects that the nature of the charge and the
elements of the crime were explained to the defendant by
his own, competent counsel. Cf. Henderson, supra, at 647
(granting relief to a defendant unaware of the elements of
his crime, but distinguishing that case from others where
“the record contains either an explanation of the charge by
the trial judge, or at least a representation by defense coun-
sel that the nature of the offense has been explained to the
accused”). Where a defendant is represented by competent
counsel, the court usually may rely on that counsel’s assur-
ance that the defendant has been properly informed of the
nature and elements of the charge to which he is pleading
guilty.
Seeking to counter this natural inference, Stumpf argues,
in essence, that his choice to plead guilty to the aggra-
vated murder charge was so inconsistent with his denial of
having shot the victim that he could only have pleaded
guilty out of ignorance of the charge’s specific intent re-
8 BRADSHAW v. STUMPF
Opinion of the Court
quirement. But Stumpf ’s asserted inconsistency is illu-
sory. The aggravated murder charge’s intent element did
not require any showing that Stumpf had himself shot
Mrs. Stout. Rather, Ohio law considers aiders and abet-
tors equally in violation of the aggravated murder statute,
so long as the aiding and abetting is done with the specific
intent to cause death. See In re Washington, 81 Ohio St.
3d 337, 691 N. E. 2d 285 (1998); State v. Scott, 61 Ohio St.
2d 155, 165, 400 N. E. 2d 375, 382 (1980). As a result,
Stumpf ’s steadfast assertion that he had not shot Mrs.
Stout would not necessarily have precluded him from
admitting his specific intent under the statute.
That is particularly so given the other evidence in this
case. Stumpf and Wesley had gone to the Stouts’ home
together, carrying guns and intending to commit armed
robbery. Stumpf, by his own admission, shot Mr. Stout in
the head at close range. Taken together, these facts could
show that Wesley and Stumpf had together agreed to kill
both of the Stouts in order to leave no witnesses to the
crime. And that, in turn, could make both men guilty of
aggravated murder regardless of who actually killed Mrs.
Stout. See ibid., at 165, 400 N. E. 2d, at 382.
Stumpf also points to aspects of the plea hearing tran-
script which he says show that both he and his attorneys
were confused about the relevance and timing of defenses
Stumpf and his attorneys had planned to make. First, at
one point during the hearing, the presiding judge stated
that by pleading guilty Stumpf would waive his trial
rights and his right to testify in his own behalf. Stumpf ’s
attorney answered that Stumpf “was going to respond but
we have informed him that there is, after the plea, a hear-
ing or trial relative to the underlying facts so that he is of
the belief that there will be a presentation of evidence.”
App. 140. The presiding judge responded that “[o]f course
in the sentencing portion of this trial you do have those
rights to speak in your own behalf [and] to present evi-
Cite as: 545 U. S. ____ (2005) 9
Opinion of the Court
dence and testimony on your own behalf.” Ibid. A few
moments later, there was another exchange along similar
lines, after the judge asked Stumpf whether he was “in
fact guilty of” the aggravated murder charge and its capi-
tal specification:
“[DEFENSE COUNSEL]: . . . Your Honor, the defen-
dant has asked me to explain his answer. His answer
is yes. He will recite that with obviously his under-
standing of his right to present evidence at a later
time relative to his conduct, but he’ll respond to that.
“JUDGE HENDERSON: At no time am I implying
that the defendant will not have the right to present
evidence in [the] mitigation hearing . . . . And I’m go-
ing to ask that the defendant, himself, respond to the
question that I asked with that understanding that he
has the right to present evidence in mitigation. I’m
going to ask the defendant if he is in fact guilty of the
charge set forth in Count one, including specification
one . . . ?
“THE DEFENDANT: Yes, sir.” Id., at 142.
Reviewing this exchange, the Court of Appeals concluded
that Stumpf “obviously . . . was reiterating his desire to
challenge the [S]tate’s account of his actions”—that is, to
show that he did not intend to kill Mrs. Stout. 367 F. 3d,
at 607. But the desire to contest the State’s version of
events would not necessarily entail the desire to contest
the aggravated murder charge or any of its elements.
Rather, Stumpf ’s desire to put on evidence “relative to the
underlying facts” and “relative to his conduct” could
equally have meant that Stumpf was eager to make his
mitigation case—an interpretation bolstered by the attor-
ney’s and Stumpf ’s approving answers after the presiding
judge confirmed that the defense could put on evidence “in
mitigation” and in “the sentencing” phase. While
Stumpf ’s mitigation case was premised on the argument
10 BRADSHAW v. STUMPF
Opinion of the Court
that Stumpf had not shot Mrs. Stout, that was fully con-
sistent with his plea of guilty to aggravated murder. See
supra, at 7–8.
Finally, Stumpf, like the Court of Appeals, relies on the
perception that he obtained a bad bargain by his plea—
that the State’s dropping several non-murder charges and
two of the three capital murder specifications was a bad
tradeoff for Stumpf ’s guilty plea. But a plea’s validity may
not be collaterally attacked merely because the defendant
made what turned out, in retrospect, to be a poor deal.
See Brady, 397 U. S., at 757; Mabry v. Johnson, 467 U. S.
504, 508 (1984). Rather, the shortcomings of the deal
Stumpf obtained cast doubt on the validity of his plea only
if they show either that he made the unfavorable plea on
the constitutionally defective advice of counsel, see Tollett
v. Henderson, 411 U. S. 258, 267 (1973), or that he could not
have understood the terms of the bargain he and Ohio
agreed to. Though Stumpf did bring an independent claim
asserting ineffective assistance of counsel, that claim is
not before us in this case. And in evaluating the validity
of Stumpf ’s plea, we are reluctant to accord much weight
to his post hoc reevaluation of the wisdom of the bargain.
Stumpf pleaded guilty knowing that the State had copious
evidence against him, including the testimony of Mr.
Stout; the plea eliminated two of the three capital specifi-
cations the State could rely on in seeking the death pen-
alty; and the plea allowed Stumpf to assert his acceptance
of responsibility as an argument in mitigation. Under
these circumstances, the plea may well have been a know-
ing, voluntary, and intelligent reaction to a litigation
situation that was difficult, to say the least. The Court of
Appeals erred in concluding that Stumpf was uninformed
about the nature of the charge he pleaded guilty to, and
we reverse that portion of the judgment below.
Cite as: 545 U. S. ____ (2005) 11
Opinion of the Court
B
The Court of Appeals was also wrong to hold that prose-
cutorial inconsistencies between the Stumpf and Wesley
cases required voiding Stumpf ’s guilty plea. Stumpf ’s
assertions of inconsistency relate entirely to the prosecu-
tor’s arguments about which of the two men, Wesley or
Stumpf, shot Mrs. Stout. For the reasons given above, see
supra, at 7–8, the precise identity of the triggerman was
immaterial to Stumpf ’s conviction for aggravated murder.
Moreover, Stumpf has never provided an explanation of
how the prosecution’s postplea use of inconsistent argu-
ments could have affected the knowing, voluntary, and
intelligent nature of his plea.
The prosecutor’s use of allegedly inconsistent theories
may have a more direct effect on Stumpf ’s sentence, how-
ever, for it is at least arguable that the sentencing panel’s
conclusion about Stumpf ’s principal role in the offense was
material to its sentencing determination. The opinion
below leaves some ambiguity as to the overlap between
how the lower court resolved Stumpf ’s due process chal-
lenge to his conviction, and how it resolved Stumpf ’s
challenge to his sentence. It is not clear whether the
Court of Appeals would have concluded that Stumpf was
entitled to resentencing had the court not also considered
the conviction invalid. Likewise, the parties’ briefing to
this Court, and the question on which we granted certio-
rari, largely focused on the lower court’s determination
about Stumpf ’s conviction. See, e.g., Pet. for Cert. ii (re-
questing review of Stumpf ’s conviction, not sentence);
Reply Brief for Petitioner 3 (challenge to Court of Appeals’
decision is focused on issue of conviction); Brief for Re-
spondent 15, n. 3 (“arguments regarding Stumpf ’s death
sentence are not before this Court”). In these circum-
stances, it would be premature for this Court to resolve
the merits of Stumpf ’s sentencing claim, and we therefore
express no opinion on whether the prosecutor’s actions
12 BRADSHAW v. STUMPF
Opinion of the Court
amounted to a due process violation, or whether any such
violation would have been prejudicial. The Court of Ap-
peals should have the opportunity to consider, in the first
instance, the question of how Eastman’s testimony and
the prosecutor’s conduct in the Stumpf and Wesley cases
relate to Stumpf ’s death sentence in particular. Accord-
ingly, we vacate the portion of the judgment below relat-
ing to Stumpf ’s prosecutorial inconsistency claim, and we
remand the case for further proceedings consistent with
this opinion.
It is so ordered.
Cite as: 545 U. S. ____ (2005) 1
SOUTER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–637
_________________
MARGARET BRADSHAW, WARDEN, PETITIONER v.
JOHN DAVID STUMPF
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 13, 2005]
JUSTICE SOUTER, joined by JUSTICE GINSBURG, concur-
ring.
I join the opinion of the Court and add this word to
explain the issue that I understand we are remanding for
further consideration. As the Court notes in its opinion,
although respondent John Stumpf challenged both his
conviction and his death sentence, his attack on the sen-
tence was not always distinct from the issue raised about
the conviction.
I understand Stumpf to claim that it violates the basic
due process standard, barring fundamentally unfair pro-
cedure, to allow his death sentence to stand in the after-
math of three positions taken by the State: (1) at Stumpf’s
sentencing hearing; (2) at the trial of Stumpf ’s codefen-
dant, Clyde Wesley; and (3) in response to Stumpf ’s mo-
tion to withdraw his guilty plea in light of the State’s
position at the Wesley trial. At the hearing on Stumpf ’s
sentence, the State argued that he was the triggerman,
and it urged consideration of that fact as a reason to im-
pose a death sentence. App. 186, 188–189. The trial court
found that Stumpf had pulled the trigger and did sentence
him to death, though it did not state that finding Stumpf
to be the shooter was dispositive in determining the sen-
tence. App. to Pet. for Cert. 219a. After the sentencing
proceeding was over, the State tried the codefendant,
2 BRADSHAW v. STUMPF
SOUTER, J., concurring
Wesley, and on the basis of testimony from a new witness
argued that Wesley was in fact the triggerman, App. 282,
and should be sentenced to death. The new witness was
apparently unconvincing to the jury, which in any event
was informed that Stumpf had already been sentenced to
death for the crime; the jury rejected the specification that
named Wesley as the triggerman, and it recommended a
sentence of life, not death. Stumpf then challenged his
death sentence (along with his conviction) on the basis of
the prosecution’s position in the Wesley case. In response,
the State did not repudiate the position it had taken in the
codefendant’s case, or explain that it had made a mistake
there. Instead, it merely dismissed the testimony of the
witness it had vouched for at Wesley’s trial, id., at 125,
and maintained that Stumpf ’s death sentence should
stand for some or all of the reasons it originally argued for
its imposition. At the end of the day, the State was on
record as maintaining that Stumpf and Wesley should
both be executed on the ground that each was the trigger-
man, when it was undisputed that only one of them could
have been.
Stumpf ’s claim as I understand it is not a challenge to
the evidentiary basis for arguing for the death penalty in
either case; nor is it a claim that the prosecution deliber-
ately deceived or attempted to deceive either trial court, as
in Mooney v. Holohan, 294 U. S. 103 (1935) (per curiam);
nor does it implicate the rule that inconsistent jury ver-
dicts may be enforced, United States v. Powell, 469 U. S.
57 (1984); Dunn v. United States, 284 U. S. 390 (1932). As
I see it, Stumpf ’s argument is simply that a death sen-
tence may not be allowed to stand when it was imposed in
response to a factual claim that the State necessarily
contradicted in subsequently arguing for a death sentence
in the case of a codefendant. Stumpf’s position was antici-
pated by JUSTICE STEVENS’s observation 10 years ago that
“serious questions are raised when the sovereign itself
Cite as: 545 U. S. ____ (2005) 3
SOUTER, J., concurring
takes inconsistent positions in two separate criminal
proceedings against two of its citizens,” and that “the
heightened need for reliability in capital cases only under-
scores the gravity of those questions . . . .” Jacobs v. Scott,
513 U. S. 1067, 1070 (1995) (citation and internal quota-
tion marks omitted). JUSTICE STEVENS’s statement in
turn echoed the more general one expressed by Justice
Sutherland in Berger v. United States, 295 U. S. 78, 88
(1935), that the State’s interest in winning some point in a
given case is transcended by its interest “that justice shall
be done.” Ultimately, Stumpf ’s argument appears to be
that sustaining a death sentence in circumstances like
those here results in a sentencing system that invites the
death penalty “to be . . . wantonly and . . . freakishly im-
posed.” Lewis v. Jeffers, 497 U. S. 764, 774 (1990) (quoting
Gregg v. Georgia, 428 U. S. 153, 188 (1976) (joint opinion
of Stewart, Powell, and STEVENS, JJ.) (internal quotation
marks omitted)).
If a due process violation is found in the State’s mainte-
nance of such inconsistent positions, there will be reme-
dial questions. May the death sentence stand if the State
declines to repudiate its inconsistent position in the code-
fendant’s case? Would it be sufficient simply to reexamine
the original sentence and if so, which party should have
the burden of persuasion? If more would be required,
would a de novo sentencing hearing suffice?
Cite as: 545 U. S. ____ (2005) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–637
_________________
MARGARET BRADSHAW, WARDEN, PETITIONER v.
JOHN DAVID STUMPF
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 13, 2005]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
concurring.
I join the Court’s opinion. As the Court notes, the State
has not argued that Teague v. Lane, 489 U. S. 288 (1989),
forecloses Stumpf ’s claim that the prosecution’s presenta-
tion of inconsistent theories violated his right to due proc-
ess. Ante, at 6. With certain narrow exceptions, Teague
precludes federal courts from granting habeas petitioners
relief on the basis of “new” rules of constitutional law
established after their convictions become final. 489 U. S.,
at 310 (plurality opinion). This Court has never hinted,
much less held, that the Due Process Clause prevents a
State from prosecuting defendants based on inconsistent
theories. Moreover, it is “[a] threshold question in every
habeas case . . . whether the court is obligated to apply the
Teague rule to the defendant’s claim,” and “if the State
does argue that the defendant seeks the benefit of a new
rule of constitutional law, the court must apply Teague
before considering the merits of the claim.” Horn v.
Banks, 536 U. S. 266, 271 (2002) (per curiam) (internal
quotation marks omitted). The State also has not argued
that Stumpf procedurally defaulted his due process claim,
even though it appears that Stumpf never presented this
argument to the Ohio courts. Stumpf did not even raise
2 BRADSHAW v. STUMPF
THOMAS, J., concurring
the inconsistent-theories claim in his first federal habeas
filings. See App. to Pet. for Cert. 134a–140a. Instead, the
District Court raised the issue for Stumpf sua sponte, and
ordered supplemental briefing on the point. See App. 97–
98. The Court’s opinion does not preclude the State from
advancing either of these procedural defenses on remand
in support of Stumpf’s death sentence.
Moreover, I agree with the Court that “Stumpf has never
provided an explanation of how the prosecution’s postplea
use of inconsistent arguments could have affected the
knowing, voluntary, and intelligent nature of his plea.”
Ante, at 11. Similar reasoning applies to Stumpf ’s sen-
tence. Stumpf equally has never explained how the prose-
cution’s use of postsentence inconsistent arguments—
which were based on evidence unavailable until after
Stumpf was sentenced—could have affected the reliability
or procedural fairness of his death sentence. At most, the
evidence and purportedly inconsistent theory presented at
Wesley’s trial would constitute newly discovered evidence
casting doubt on the reliability of Stumpf ’s death sentence,
a sort of claim that our precedents and this Nation’s tradi-
tions have long foreclosed, see Herrera v. Collins, 506 U. S.
390, 408–417 (1993); id., at 427–428 (SCALIA, J., concur-
ring). The Bill of Rights guarantees vigorous adversarial
testing of guilt and innocence and conviction only by proof
beyond a reasonable doubt. These guarantees are more
than sufficient to deter the State from taking inconsistent
positions; a prosecutor who argues inconsistently risks
undermining his case, for opposing counsel will bring the
conflict to the factfinder’s attention. See ante, at 2
(SOUTER, J., concurring) (noting that Wesley’s jury was
informed that Stumpf had already been sentenced to
death for the crime).