Dugger v. Adams

*412Justice Blackmun,

with whom Justice Brennan, Justice Marshall, and Justice Stevens join, dissenting.

Although this Court repeatedly has ruled that the Eighth Amendment prohibits the arbitrary or capricious imposition of the death penalty,1 the Court today itself arbitrarily im*413poses procedural obstacles to thwart the vindication of what apparently is a meritorious Eighth Amendment claim.

In this case, the Eleventh Circuit determined that respondent Aubrey Dennis Adams was sentenced to death in violation of the Eighth Amendment, as interpreted in Caldwell v. Mississippi, 472 U. S. 320 (1985).2 This Court now reverses that determination, not because it finds the death sentence valid, but because respondent was late in presenting his claim to the Florida courts. In other words, this Court is sending a man to a presumptively unlawful execution because he or his lawyers did not raise his objection at what is felt to be the appropriate time for doing so.

I would understand, and accept, the Court’s decision if the federal courts lacked authority to remedy the unconstitutional death sentence. But, manifestly, that is not the case. In reversing the judgment of the Court of Appeals, the majority relegates to a footnote its discussion of established doctrines that, upon full consideration, might entitle respondent to an affirmance, not a reversal, of that judgment. Thus, the majority not only capriciously casts aside precedent to reinstate an unconstitutionally “unreliable”3 death sentence *414purely for procedural reasons, but also compounds that capriciousness by issuing an opinion in which decisive issues receive only dismissive consideration. Given this treatment of the case, it is worth reflecting for a moment on the special inappropriateness and cruelty of the impending execution.

h — t

There is no need to dwell upon the history of the Court’s decisions on whether a criminal defendant’s failure to comply with a rule of state procedure precludes review of his conviction or sentence in a subsequent federal habeas corpus proceeding. By now it is settled that an adequate and independent state procedural ground, which would have precluded direct review in this Court, bars habeas review unless the habeas petitioner can demonstrate “cause” for the procedural default and “prejudice” resulting from the alleged constitutional violation. Wainwright v. Sykes, 433 U. S. 72, 84, 87, 90-91 (1977).

Since Sykes, the Court has refined the “cause” and “prejudice” standard, see, e. g., Reed v. Ross, 468 U. S. 1 (1984); Engle v. Isaac, 456 U. S. 107 (1982), and also has held that habeas review of a defaulted claim is available, even absent “cause” for the default, if the failure to consider the claim would result in a “fundamental miscarriage of justice.” Smith v. Murray, 477 U. S. 527, 537-538 (1986); Murray v. Carrier, 477 U. S. 478, 495-496 (1986). In Smith, this Court applied the “fundamental miscarriage of justice” principle to an alleged sentencing error in a capital case. In an effort to equate review of convictions and sentences under this principle, the Court apparently settled upon the following standard: the habeas petitioner must make a “substantial” showing “that the alleged error undermined the accuracy of the guilt or sentencing determination.” 477 U. S., at 539. Even this narrow standard makes clear that the “fundamental miscar*415riage of justice” principle is applicable to allegations of capital sentencing errors.4

Thus, under our precedents, the Court of Appeals was correct to review respondent’s procedurally defaulted Caldwell claim if any one of three conditions is met: (1) the Florida Supreme Court’s finding of procedural default was not an adequate and independent ground for its decision; (2) respondent can show cause for and prejudice from his default; or (3) the failure to review respondent’s claim would result in a fundamental miscarriage of justice. Yet the Court devotes but a single footnote at the end of its opinion to the first and third of these principles. Ante, at 410-412, n. 6.

The Court acknowledges, as it must, that it granted certio-rari to consider whether respondent had established “cause” for his procedural default. Ante, at 406. But this interest in the “cause” inquiry does not permit the Court to consign to second-class status the rest of the analysis necessary for determining whether the Court of Appeals properly considered the merits of respondent’s Caldwell claim. Indeed, once the other two principles receive the attention they deserve, it becomes evident that each provides an alternative basis for affirming the Court of Appeals’ judgment.

*416y — < i — t

The majority recognizes that a state court s reliance on a procedural bar rule is inadequate if that rule “has not been ‘consistently or regularly applied.’” Ante, at 410, n. 6, quoting Johnson v. Mississippi, 486 U. S. 578, 589 (1988). The majority, however, asserts that in respondent’s case the Florida Supreme Court’s reliance on procedural bar grounds was adequate under this standard. I must disagree.

When respondent raised his Caldtvell claim for the first time in his second postconviction motion under Rule 3.850 of the Florida Rules of Criminal Procedure, the Florida Supreme Court held this claim, among others, procedurally barred because respondent did not raise the claim in his direct appeal. See Adams v. State, 484 So. 2d 1216, 1217, cert. denied, 475 U. S. 1103 (1986). The court further found that presenting the Caldtvell claim in a successive Rule 3.850 proceeding was an abuse of the Rule. 484 So. 2d, at 1217.5 This decision issued on March 3, 1986.

Prior to that date, however, the Florida Supreme Court, in two Rule 3.850 cases, did not foreclose review of Caldtvell claims, notwithstanding the existence of similar procedural defaults. First, in Darden v. State, 475 So. 2d 217 (1985), which also involved a second Rule 3.850 motion, the Florida *417Supreme Court considered the merits of the Caldwell claim even though the prisoner there, like respondent here, failed to argue either on direct appeal or in his first Rule 3.850 motion that the jury was misled about its role in the capital sentencing process. See Darden v. State, 329 So. 2d 287 (1976) (direct appeal), cert. dism’d, 430 U. S. 704 (1977); Darden v. State, 372 So. 2d 437 (1979) (first Rule 3.850 motion).6 Indeed, in “choos[ing] to address” the merits of the defaulted Caldwell claim in Darden, the Florida Supreme Court explicitly rebuffed the State’s efforts to have the court reject the claim on the ground that its presentation constituted an abuse of the Rule 3.850 process. See 475 So. 2d, at 218.

Second, in Mann v. State, 482 So. 2d 1360 (1986), the Florida Supreme Court considered the merits of a Caldwell claim (among others), even though the claim was not raised on direct appeal. As the Eleventh Circuit noted, the Florida Supreme Court in Mann simply “chose not to enforce its own procedural default rule.” Mann v. Dugger, 844 F. 2d 1446, 1448, n. 4 (1988) (en banc), cert. pending, No. 87-2073. Thus, by the time that it decided Adams, the Florida Supreme Court had failed to apply the State’s procedural bar rules to at least two defaulted Caldwell claims.

Furthermore, in no case prior to Adams did the Florida Supreme Court plainly hold a Caldwell claim procedurally barred. Petitioners cite Middleton v. State, 465 So. 2d 1218, 1226 (1985), but it surely is questionable whether the reference to a procedural default in that case would satisfy the “plain statement” standard of Harris v. Reed, ante, p. 255. *418In any event, even counting Middleton as a case in which the Florida Supreme Court invoked a procedural bar rule to preclude review of a Caldwell claim, it is impossible to say, in light of Darden and Mann, that the decision in Adams was an application of “strictly or regularly followed” state procedural requirements. Barr v. City of Columbia, 378 U. S. 146, 149 (1964). Consequently, the state-law ground in Adams would not have foreclosed this Court’s consideration of the Caldwell claim had we chosen to exercise our certiorari jurisdiction on direct review, and, a fortiori, it does not preclude review of the Caldwell claim in this habeas proceeding. See Wainwright v. Sykes, 433 U. S. 72 (1977).

The majority’s reasons for discounting Darden and Mann are not persuasive. As to Darden, the majority observes that the Florida Supreme Court did not discuss the prisoner’s failure to raise his Caldwell claim on direct appeal, but rather mentioned only the failure to raise the Caldwell claim in a prior Rule 3.850 proceeding. But this observation misses the point. The fact remains that Darden on direct appeal did not raise his claim that the jury was misled about its role in sentencing him. See 329 So. 2d, at 288-291. Accordingly, Darden is a case in which the Florida Supreme Court did not bar review of a Caldwell claim, even though the claim was raised neither on direct appeal nor in the first Rule 3.850 proceeding. The treatment of the Caldwell claim in Darden is thus starkly inconsistent with the treatment of the Caldwell claim in Adams, despite the identical procedural posture of the two cases. For this reason alone, Darden demonstrates the inadequacy of the procedural bar ruling in Adams.

As to Mann, the majority notes that the court did not specifically mention the prisoner’s Caldwell claim. But again, the majority misses the point. In respondent’s case, too, the Flordia Supreme Court did not expressly mention the Caldwell claim. See 484 So. 2d, at 1217-1218. The issue here, however, is not whether the Florida Supreme Court in each case identified the claim by name, but whether it held the *419claim procedurally barred. In Mann, it did not; in Adams, it did. Thus, the inconsistent treatment of the Caldwell claims in Mann and Adams supports a finding of inadequacy here.

In my view, then, the majority’s attempts to distinguish Darden and Mann are clearly unavailing, and these two cases suffice to show that respondent’s procedural default does not constitute an adequate state ground barring review of his Caldwell claim. Moreover, decisions of the Florida Supreme Court handed down after Adams reinforce the conclusion that that court has been inconsistent in applying its procedural bar rules to Caldwell claims. In Combs v. State, 525 So. 2d 853 (1988), the court did not invoke procedural default as a basis for decision, notwithstanding the prisoner’s failure to present his Caldwell claim on direct appeal. See Combs v. State, 403 So. 2d 418, 420-421 (1981), cert. denied, 456 U. S. 984 (1982). Rather, the court affirmatively chose to address the merits of the Caldwell claim, largely because it wanted to announce its view that Caldwell is inapplicable to Florida capital cases.7

The Florida Supreme Court also did not rely on procedural bar grounds in Daugherty v. State, 533 So. 2d 287, cert. denied, 488 U. S. 959 (1988), even though that case involved a second Rule 3.850 motion and the convict there, like respondent here, did not raise his Caldwell claim either on direct review or in his first Rule 3.850 motion. See Daugherty v. State, 419 So. 2d 1067 (1982) (direct appeal), cert. denied, 459 U. S. 1228 (1983); Daugherty v. State, 505 So. 2d 1323 (first Rule 3.850 motion), cert. denied, 484 U. S. 891 (1987). Rather, in Daugherty, the court rested its rejection of the *420Caldwell claim solely on the ground that in Combs the court had “determined that Caldwell is inapplicable in Florida.” 533 So. 2d, at 288.

Most recently, in Glock v. Dugger, 537 So. 2d 99 (1989), the Florida Supreme Court did not hold a Caldwell claim procedurally barred, even though the claim was not raised on direct appeal. Puiatti v. State, 495 So. 2d 128, 132 (Fla. 1986).8 In sum, Combs, Daugherty, and Glock convincingly demonstrate that the Florida Supreme Court still does not strictly apply its procedural bar rules to Caldwell claims. Contrasting all five cases (Darden, Mann, Combs, Daugherty, and Glock) with Adams, one cannot seriously contend that the Florida Court has applied its procedural bar rules “evenhandedly to all similar claims.” Hathorn v. Lovorn, 457 U. S. 255, 263 (1982).9 *421Thus, once the adequacy issue is fully considered, there is no escaping the conclusion that the Florida Supreme Court’s rejection of respondent’s Caldwell claim did not rest on an adequate state ground. Yet, in unseemly haste to reverse the Court of Appeals on the issue of “cause,” the majority treats the adequacy issue as an afterthought, although it is an analytically antecedent issue.10

III

Even if, somehow, I could be convinced that the Florida Supreme Court’s reliance on respondent’s procedural default was “adequate,” within the meaning of this Court’s precedents, I would still conclude that the Court of Appeals properly reached the merits of respondent’s Caldwell claim. I have no quarrel with the majority’s determination that respondent cannot show “cause” for his procedural default.11 *422“That determination, however, does not end our inquiry.” Smith v. Murray, 477 U. S., at 537.

Rather, as the majority apparently recognizes, we must consider whether the failure to examine the merits of the Caldwell claim in this habeas action would result in a fundamental miscarriage of justice. The majority believes that no such injustice would occur. Again, I disagree.

Respondent’s Caldwell claim, see generally Brief for Respondent 25-49, rests on the following premises: Under Florida law, the judge at his trial was permitted to overturn the jury’s judgment on whether he should receive a life or a death sentence only upon a clear and convincing showing that the jury’s choice was erroneous.12 Notwithstanding this rule of Florida law, the trial judge repeatedly and insistently told the jurors that their sentencing vote was “strictly a recommendation and nothing more,” that he was “not bound to follow that recommendation,” and that he was “the sole determiner on whether or not [respondent] receives life or is put into the electric chair.” App. 28, 69, 78, 79. Furthermore, the judge drummed this misinformation into the jurors’ heads by repeatedly telling them that “the most important thing ... to remember” was the nonbinding nature of their recommendation and that the capital sentencing decision was not on their “conscience” but on his. Id., at 69-70, 77-78.

If (as the Court of Appeals held and we must assume) these repeated and insistent comments mischaracterized the jury’s role under state law, then the sentencing process in respondent’s case was so distorted as to render the sentence inherently suspect. The alleged error in this case was severe: the incorrect instructions may well have caused the jury to vote for a death sentence that it would not have returned had it been accurately instructed. See Caldwell v. Mississippi, *423472 U. S., at 331-333. Jurors who erroneously believe that responsibility for the defendant’s death lies on someone else’s conscience may be more willing to vote for death “to ‘send a message’ of extreme disapproval for the defendant’s acts.” Id., at 331. Thus, it is plain that respondent has presented a “substantial claim that the alleged error undermined the accuracy of the . . . sentencing determination” at his trial. Smith v. Murray, 477 U. S., at 539. Indeed, the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined.

In this respect, the alleged sentencing error here is entirely unlike the one at issue in Smith itself. There, admission of particular testimony allegedly violated the Fifth and Eighth Amendments,13 and the question was whether its admission “pervert[ed] the jury’s deliberations” on issues relevant to its capital sentencing determination. 477 U. S., at 538. This case, in contrast, does not concern the inclusion or exclusion of particular evidence, but does concern a detailed and repeated explanation of the jury’s responsibility, or lack of it, in the sentencing process. The alleged error thus is global in scope: it necessarily pervades the entire sentencing process. Indeed, the alleged error in this case, if true, could not help but pervert the sentencing decision.14 Conse*424quently, respondent’s Caldwell claim must fall within the scope of the “fundamental miscarriage of justice” exception to the Sykes “cause” and “prejudice” test, unless the Court today means to repudiate sub silentio its opinion in Smith.

In other words, respondent’s Caldwell claim is precisely the kind of claim that remains reviewable in a federal habeas action even though respondent cannot establish cause for his procedural default. See Smith, 477 U. S., at 537-539. In holding otherwise, the Court sends respondent to an execution that not only is presumptively unlawful, but is presumptively inaccurate as well. See Caldwell, 472 U. S., at 331. Nothing in the habeas corpus precedents of this Court calls for this consummately capricious result.15

*425<1

Contrary to the result reached by the majority today, our precedents amply support the- Court of Appeals’ decision to consider whether respondent’s death sentence was unconstitutionally unreliable despite respondent’s failure to raise this constitutional issue in accordance with state procedures. It is not surprising, I suppose; that the Court misses the force of these precedents, since it confines two-thirds of the relevant inquiry to a single footnote at the end of its opinion.

If the Court can reach the question of “cause,” on which certiorari was granted, only by making a mockery of the requirement that state procedural bar rules be “applied] evenhandedly to all similar claims,” Hathorn v. Lovorn, 457 U. S., at 263, then the Court should dismiss the writ of certiorari as improvidently granted. Similarly, if the Court does not wish to undertake the task of applying the “fundamental miscarriage of justice” inquiry, then it should remand the case to the Court of Appeals for that purpose. But inasmuch as the Court has chosen to decide these issues, the conclusory treatment they receive does not suffice to discharge the Court’s responsibilities to respondent, for whom these issues are a matter of life or death. Indeed, I would have expected that when this Court reinstates a death sentence vacated by the judgment below (and does so purely for procedural reasons), it would be particularly careful to consider fully all issues necessary to its disposition of the case. To judge by footnote 6 of the Court’s opinion, this expectation was naive.

I dissent.

E. g., Johnson v. Mississippi, 486 U. S. 578, 585-587 (1988); Maynard v. Cartwright, 486 U. S. 356, 362-363 (1988); Booth v. Maryland, 482 *413U. S. 496, 509 (1987); California v. Ramos, 463 U. S. 992, 999 (1983); Zant v. Stephens, 462 U. S. 862, 874 (1983).

In Caldwell, this Court ruled that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere." 472 U. S., at 328-329.

See Adams v. Wainwright, 804 F. 2d 1526, 1533 (CA11 1986); 816 F. 2d 1493, 1501 (CA11 1987) (case below). The Eleventh Circuit, in a subsequent case heard en banc, had occasion to express unanimous approval of the panel decision here that respondent’s Caldwell claim is meritorious — even as the en banc Eleventh Circuit divided sharply over the validity of Caldwell claims brought by other prisoners on weaker factual records. See Harich v. Dugger, 844 F. 2d 1464, 1473 (1988), cert. pending, No. 88-5216. Moreover, in the instant case, petitioners did not even seek review of the Court of Appeals’ determination, under Caldwell, that respondent’s death sentence violated the Eighth Amendment. See ante, at 408, n. 4.

One may well be uncertain as to what meaning Smith gave to the term “fundamental miscarriage of justice.” The opinion cites Murray v. Carrier, which states 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.” 477 U. S., at 496. The Smith majority acknowledged, however, that the “concept of ‘actual’. . . innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial-on a capital offense.” Id., at 537. Nonetheless, as is said in the text here, Smith appears to have rendered this translation: the refusal to review the constitutionality of a death sentence does not result in a fundamental miscarriage of justice unless there is a substantial claim that the constitutional violation undermined the accuracy of the sentencing deci7 sion. In any event, in evaluating whether respondent’s procedural default precluded the Court of Appeals’ consideration of his Caldwell claim, I assume, arguendo, that this is the governing standard after Smith.

The Court of Appeals found, 816 F. 2d, at 1497, n. 3, and respondent argues, that the Florida Supreme Court did not hold the Caldivell claim an abuse of the Rule 3.850 procedure. This reading of the Florida court’s opinion, however, appears to be contrary to its plain language:

5 Having carefully reviewed [respondent’s remaining claims], we find that each one either was or should have been raised on direct appeal. We therefore find that the review sought by [respondent] is barred both by Rule 3.850 as ‘an abuse of the procedure governed by these rules,’ and by the caselaw which has firmly established the necessity of raising all available issues upon direct appeal.” 484 So. 2d, at 1217 (emphasis added). It makes no difference for present purposes, however, whether respondent’s claim was held barred on one ground or two; for reasons set forth in the text, neither procedural bar holding constitutes an adequate state ground for the Florida Supreme Court’s judgment.

On direct appeal, Darden challenged certain statements of the prosecutor as unconstitutionally prejudicial. These statements, however, did not concern the jury’s role in the sentencing process and Darden did not suggest that the jury was misled about its role. See 329 So. 2d, at 289-291. In his second Rule 3.850 proceeding, in contrast, he “also attempt[ed] to show that as in Caldwell, the jury was misled as to its role in the sentencing process.” 475 So. 2d, at 221.

The majority attempts to dismiss Combs by saying that the court there noted the defendant’s failure to raise the Caldivell claim at trial. But it is clear that the Combs decision did not rely on any procedural default as a basis for rejecting the Caldwell claim in that case. Rather, the Combs opinion is emphatic in expressing its desire to address the Caldivell claim on the merits. See 525 So. 2d, at 854-855. Consequently, Combs is further proof of the inconsistent treatment of Caldivell claims in Florida postconviction proceedings.

The majority’s efforts to discount Daugherty and Glock reveal a fundamental misunderstanding of the consistency inquiry under Johnson v. Mississippi, 486 U. S. 578 (1986). This inquiry requires considering whether: (1) the prisoner asserted a Caldivell claim in his Rule 3.850 motion; (2) the Caldwell claim was not raised on direct appeal (or in a prior Rule 3.850 motion); and (3) the Florida Supreme Court did not hold the Caldwell claim procedurally barred. Daugherty and Glock satisfy all these criteria. Thus, they are cases in which the Florida Supreme Court failed to apply its procedural bar rules to Caldwell claims, thereby undercutting the consistency of the court’s application of those rules to similarly situated claims.

That Daugherty relied on Combs does not negate this fact. On the contrary, Daugherty’s, exclusive reliance on Combs as the basis for deciding the Caldwell issue proves conclusively that Daugherty was not an application of a procedural bar rule. Similarly, regarding Glock, it is irrelevant “whether the trial court held that the Caldwell claim was or was not procedurally barred.” Ante, at 411-412, n. 6. Either way, it remains true that the Florida Supreme Court did not hold the Caldwell claim procedurally barred, which is the relevant point for the consistency issue.

To be sure, in 1987 and 1988, the Florida Supreme Court most of the time held Caldivell claims to be procedurally barred, but this fact does not undermine the conclusion that, at the very least, when the Florida Supreme Court decided Adams, it did not “consistently or regularly” apply its procedural bar rule to a Caldwell claim. Johnson v. Mississippi, 486 U. S., at 587. Nor does it negate the fact that that court persists in failing to treat Caldwell claims in an evenhanded manner.

In addition, this Court historically has expressed particular reluctance to give force to a state court’s discretionary refusal to consider a capital defendant’s meritorious federal constitutional claim for reasons of procedural default. See Williams v. Georgia, 349 U. S. 375 (1955); Patterson v. Alabama, 294 U. S. 600 (1935). In holding the state procedural bar adequate here, the majority ignores these longstanding precedents.

I nonetheless digress to note one disturbing aspect of the majority’s analysis of the “cause” issue.

The majority broadly asserts: “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.” Ante, at 407. More pointedly, the majority continues: “Respondent therefore must be asserting in this case that the trial court’s remarks violated state law.” Ante, at 407-408. But contrary to the majority’s description of Caldwell's holding, it may be possible to establish a Caldwell violation by showing that jury instructions, although accurate under state law, nonetheless minimize the jury’s sense of responsibility in the sentencing process. See Steffen v. Ohio, 485 U. S. 916 (1988) (Brennan, J., dissenting from denial of certio-rari). The Court need not address this issue here, however, because respondent is asserting what the majority contends he “must be asserting”: his particular Caldwell claim rests on the premise that his jury was given inaccurate information about its role under state law'. Brief for Respondent 25-49. Thus, it would suffice to say that respondent lacks “cause” for *422his procedural default because under his own theory of his Caldivell claim the objectionable instructions were erroneous under state law.

See Harich v. Dugger, 844 F. 2d, at 1473; see also Mann v. Dugger, 844 F. 2d 1446, 1450-1455 (CA11 1988) (en banc), cert. pending, No. 87-2073.

The testimony at issue in Smith was that of the defendant’s court-appointed psychiatrist: during the psychiatric evaluation, the defendant discussed a prior incident of deviant sexual conduct on his part. At the sentencing phase of the trial, the prosecution called the psychiatrist to the stand and elicited a description of what the defendant had said.

As even the majority appears to recognize, ante, at 410-412, n. 6, the trial judge’s finding of an equal number of aggravating and mitigating circumstances lends further support to respondent’s contention that review of his Caldwell claim is necessary to avoid a fundamental miscarriage of justice. The equal number of aggravating and mitigating circumstances suggests that the sentencing decision was a close call — as does the fact that two justices of the Florida Supreme Court dissented on respondent’s direct appeal. See Adams v. State, 412 So. 2d 850, 857 (1982). Under these circumstances, it is all the more likely that egregiously misinforming the jury of its role in the process affected the result.

The majority “do[es] not undertake here to define what it means to be ‘actually innocent’ of a death sentence,” ante, at 412, n. 6, yet apparently concludes that respondent cannot show that he “probably is ‘actually innocent’ of the sentence he . . . received.” Ibid. This incoherence in the Court’s decisionmaking would be disturbing in any case, but is especially shocking in a capital case. Moreover, the majority “recognizefs] the difficulty” of applying the concept of “ ‘actual’ innocence” to sentencing determinations, ibid., yet persists in using that problematic term without any clarification of its meaning in the sentencing context. Ibid.

What is worse, the Court in Smith v. Murray did articulate a standard, and yet the Court today ignores it. I was not in the majority in Smith, but here I have attempted faithfully to apply the standard articulated by the Smith majority, as best as I can discern it: whether the prisoner has demonstrated a “substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination.” 477 U. S., at 539; see also Harris v. Reed, ante, at 268 (O’Connor, J., concurring) (quoting the relevant language from Smith). The majority today refuses to apply this standard because it is evident that respondent must prevail under it. The “alleged error” here — telling the jurors that the death sentence was not on their consciences, when under Florida law their sentencing determination was binding unless clearly erroneous —is such that respondent undoubtedly has presented a “substantial claim” that this error “undermined the accuracy” of his sentence, especially given the equal number of aggravating and mitigating circumstances in his case. See n. 13, siipra.

By refusing to apply this standard, the Court today effectively discards its own opinion in Smith. Yet, in also refusing to define “actual innocence” *425in the sentencing context, the Court offers nothing in its place. In this way, the Court both leaves the law in a shambles and reinstates respondent’s death sentence without ever bothering to determine what legal principle actually governs his case.