concurring.
I agree that Ferguson’s claims must fail under AEDPA’s deferential standard of review, and I therefore concur in the court’s judgment. I write separately, however, because I disagree with several of the observations expressed in the majority opinion.
Our review here is narrowly confined by 28 U.S.C. § 2254(d)(1). Affording the deference required by that statute, I agree that the Delaware courts decided Ferguson’s ex post facto claim in a manner that is neither “contrary to,” nor “an unreasonable application of,” the. analysis required under the Supreme Court case law discussed in section II B of the majority opinion. See Maj. Op. at 235-43.1 However, my colleagues do not stop there. -Rather, they opine: “we would have reached the result we do even if we exercised independent judgment in the way required before the adoption of the AEDPA.” Maj. Op. at 246. That statement is, of course, pure dictum, and I strongly disagree with it.
This case is governed by AEDPA, and there is no reason to hypothesize a de novo review of Ferguson’s ex post facto claim. Furthermore, I do not agree that Ferguson’s claim would necessarily fail if we were permitted to afford it independent review. At the very least, resolution of Ferguson’s ex post facto claim presents an issue over which reasonable minds can differ, and therefore resolution of the issue is not nearly as clear as the majority suggests. Indeed, it is solely because “reasonable” minds can differ on this very close call that Ferguson’s claim fails on habeas review of the state court ruling. Under AEDPA, we must defer to “reasonable” state court decisions even though, in our independent judgment, they are wrong. “Section 2254(d) requires us to give state courts’ opinions a respectful reading, and to listen carefully to their conclusions, but when the state court addresses a legal question, it is the law as determined by the Supreme Court of the United States that prevails.” Williams v. Taylor, — U.S. -, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000) (internal quotation marks omitted); This analytical paradox is endemic to an analysis under AEDPA, but the key to resolving it here is the deference that the Supreme Court has instructed us to afford the decision of the Delaware Supreme Court.2
*253In Williams, the Supreme Court confronted the enigmatic language of § 2254(d)(1). Writing for the majority, Justice O’Connor amplified the meaning of AEDPA’s requirement that a state court decision be “contrary to,” or involve “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The “contrary to” clause, the Court explained, permits a federal habeas court to grant relief for a constitutional violation in two scenarios: (1) when “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases”; or (2) when “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from[Supreme Court] precedent.” Id. at 1519-20. “[I]n either of these two scenarios, a federal court will be unconstrained by § 2254(d)(1) because the state-court decision falls within that provision’s ‘contrary to’ clause.” Id. The Court cautioned, however, that “a run-of-the-mill state-court decision applying the correct legal rule from [Supreme Court] cases to the facts of a prisoner’s case would not fit comfortably within § 2254(d)(l)’s ‘contrary to’ clause.” Id. The Court cited as an example a case in which a state court properly considered an ineffective assistance of counsel claim under the controlling precedent of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), explaining that, “[a]lthough the state-court decision may be contrary to the federal court’s conception of how Strickland ought to be applied in that particular case, the decision is not ‘mutually opposed’ to Strickland itself.” Id. The Court noted that such cases are more appropriately reviewed solely for their “reasonableness.” I believe that best describes our situation here, and we should therefore focus our inquiry on the reason-, ableness of the Delaware Supreme Court’s decision.3
The “unreasonable application” clause of § 2254(d)(1) likewise covers two scenarios: (1) when “the" state court identifies the correct governing legal rule from[Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner’s case”; or (2) when “the state, court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 1520. This “reasonableness” inquiry is an “objective” one. See id. at 1521-22. “[T]he most important point is that an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 1522. Thus, “a federal habeas court may., not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. However, the Court did not define the mercurial line that divides an “incorrect” from an “unreasonable” application of federal law. Rather, it simply noted that “an unreasonable application of federal law is different from an incorrect or erroneous application of federal law.” Id.
Applying the Williams framework herd, the majority properly rejects Ferguson’s ex post facto claim. The Delaware Supreme Court identified the relevant Supreme Court precedents, and it decided the merits of Ferguson’s claim in a manner that was neither “mutually opposed” to those precedents, nor “unreasonable” in its application, of them. However, this does *254not mean that the state court was correct in its application of federal law.
The Delaware Supreme Court held that, [gjiven the teaching in Dobbert, it is clear that the changes effected by Delaware’s new death penalty statute are procedural. The revisions in the law, like those in Dobbert, merely altered the method of determining imposition of the death penalty. The quantum of punishment for the crime of first-degree murder in Delaware remains unchanged.
Cohen, 604 A.2d at 853. The simplicity of that analysis is misleading, and it produces a conclusion that is incorrect, though not necessarily unreasonable. To be sure, Delaware’s law “merely altered the methods employed in determining the punishment to be imposed” insofar as it reassigned the task of imposing sentence from the jury to the judge. But unlike the statute in Dob-bert, Delaware’s law so conflates procedure and substance that it obfuscates the distinction between the two.
Under the new law, if a judge determines that aggravating factors outweigh mitigating factors, he or she must impose the death penalty. The new procedure, therefore, mandates a substantively different outcome — the death sentence rather than life without parole — when aggravating factors outweigh mitigating factors. One no longer has the discretion to impose life imprisonment when the aggravators weigh more heavily in the balance. Delaware therefore converted what had been only a discretionary maximum into a mandatory sentence when the aggravating factors outweigh any mitigating factors. As the majority quite correctly notes, the trial judge here observed at sentencing:
[UJnlike a jury under the old law, this Court, under the new law, may consider only whether or not aggravating factors outweigh mitigating factors. The Court may not in unfettered discretion refuse to impose a sentence of death where aggravating factors are proven and found to be of substantial weight and mitigating factors are found to be of less weight. The Court may not consider, in reaching its decision, mercy, societal concerns, proportionality of the sentence to other sentences imposed for Murder First Degree in other cases, or any other issues not specifically pertaining to ‘the particular circumstances or details of the offense[or] ... the character and propensities of the offender.... ’ These factors most likely were considered by and may have influenced the jury or individual jury members in their decision under the prior statute to recommend or fail to recommend death. Under that law, the jury clearly acted as ‘the conscience of the community’ and could in its unfettered discretion recommend life as the appropriate punishment for the crime and offender even though it had found the aggravating factors to outweigh the mitigating factors.
Maj. Op. at 232 (quoting App. at 129-130).
Thus, the “procedural change” wrought by the new law precludes a juror from exercising mercy in a given case, and mutes “the conscience of the community” in deliberations into whether a member of that community should be put to death. It is misleading to characterize such a fundamental change in the law as merely “procedural.” I read Lindsey v. Washington to stand for the proposition that such a change may well have increased the quantum of punishment for Ferguson’s crime.
The Delaware courts sought to distinguish Lindsey by citing the Supreme Court’s Eighth Amendment jurisprudence and holding that the new law is not “im-permissibly mandatory.” See Cohen, 604 A.2d at 855. But clearly, a determination that the new law is not “impermissibly mandatory” sidesteps the crucial question whether the new law “increased the quantum of punishment” for Ferguson’s offense. The change in Delaware’s law could not have eliminated discretion without violating the Eighth Amendment. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. *2552726, 33 L.Ed.2d 346 (1972). Thus,, even if we assume that Delaware’s new law passes muster under the Eighth Amendment because it affords an individualized inquiry before sentence is imposed, that does not mean that retrospective application of that law to Ferguson’s case did not make the death sentence “mandatory” by eliminating the discretion to impose a life sentence after it was determined that the aggravating circumstances outweighed mitigating circumstances. . ,
The Delaware Supreme Court also sought to distinguish Lindsey by ruling that a death sentence is not truly “mandatory” because the judge' must assign a “relative weight” to the aggravating and mitigating factors before determining which sentence — life imprisonment or death — is required by the new statute. The state court concluded that, given the presence of this “weighing process,” “[t]he sentencing process remains basically discretionary, merely shifting the ultimate decision from the jury to the trial judge.” Cohen, 604 A.2d at 855. The District Court agreed, stating that “[t]he sentencing decision has not been reduced to a mechanical exercise, as it was in Lindsey .” This “distinction” is irrelevant.
While the new law required a “predicate” assessment of the relative weight of the sentencing evidence before the mandated sentence was imposed, that did not make the imposition of this death sentence any less mechanical. As noted, to survive scrutiny under the Eighth Amendment, Delaware must allow for individualized findings of fact before the death sentence is imposed. See, e.g., Blystone, 494 U.S. at 305, 110 S.Ct. 1078. Thus, it is specious to distinguish Lindsey by asserting that, because the new law did not require imposition of a death sentence at the very moment Ferguson was convicted, the law somehow lost its “mandatory” and “mechanical” nature. In the context of capital punishment jurisprudence, it clearly did not. Rather, the Delaware law is the capital sentencing equivalent of the law deemed ex post facto in Lindsey. The dispositive issue in Lindsey was that a previously optional maximum became mandatory, not the procedural context in which that metamorphosis occurred. Thus, the state court’s reliance upon what it perceived to be the difference between the statute in Lindsey (“the penalty for this offense shall be fifteen years in prison”) and the statute here (“if, at sentencing, the judge finds that the aggravating factors outweigh the mitigating factors, the sentence shall be death”) does not further the inquiry. “Subtle ex post facto violations are no more permissible than overt ones.” Collins, 497 U.S. at 46, 110 S.Ct. 2715.
It is also obvious that Delaware’s new law had exactly the intended result. Delaware enacted the new sentencing scheme to make it more difficult for convicted murderers to escape execution. The Delaware Supreme Court has noted that
the catalyst for the legislation changing the death penalty statute was the imposition of life sentences on defendants by a New Castle County jury in a much publicized capital murder case involving the execution style murders of two armored car guards.
Cohen, 604 A.2d at 849. The reaction reflected the community’s justifiable outrage ovey those murders. Ferguson contends that a vastly higher proportion of defendants have been sentenced to death under the new statute. He argues, therefore, that Lindsey prevents Delaware from applying the new statute to him. He asserts that of the 28 defendants who have been sentenced under the amended statute, 15 (more than 50%) have been sentenced to death. Of the 29 defendants sentenced under the old statute in the 6 years prior to the amendment, only 1 (less than 4%) was sentenced to death.4
*256The majority minimizes this argument in part by noting:
we must consider the increased imposition of the death penalty against the circumstance that under the amended law the court as opposed to a unanimous jury must determine to impose a death penalty. Surely it would be expected that, in light of that difference, there would have been more sentences of death.
Maj. Op. at 246 (emphasis added). The majority cites no authority for this speculation, and I submit that it is at least as likely (indeed more so) that this change would, by itself, reduce the number of death sentences. After all, one can safely assume that trained jurists are less likely to allow the emotions that so often percolate into the fabric of death penalty proceedings to impact their judgments about the cases that 'are submitted to death qualified juries. Moreover, there is a significant school of thought that a jury that has been “death qualified” is more prone to convict, and one might argue more prone to impose the death penalty, than a jury composed of persons opposed to the death penalty. See Witt v. Wainwright, 470 U.S. 1039, 105 S.Ct. 1415, 84 L.Ed.2d 801 (1985) (and cases cited therein). Finally, I think it fair to assume that a trained jurist who has been exposed to numerous homicide eases has a better frame of reference than a lay jury, and therefore less likely to be as outraged about a given homicide as lay jurors who have never seen a homicide, or a convicted killer, “up close and personal.” Accordingly, the trained jurist may often be far less likely to assume that the ultimate sanction is required in a given case.
I think it is obvious that the new statute is significantly more likely to result in the death penalty than the statute in effect at the time of Ferguson’s crime. However, as the majority correctly notes, that does not necessarily implicate the Ex Post Facto Clause. See Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). However, that clause would be implicated under the aforementioned Lindsey analysis under de novo review, and I believe that Delaware’s retrospective application of the challenged statute to Ferguson’s ease would violate the Ex Post Facto Clause under Lindsey.
That said, I am constrained, nevertheless, to agree with my colleagues that the state court’s treatment of Lindsey and the other Supreme Court precedents must be upheld in light of § 2254(d)(l)’s mandate. Under the “contrary to” clause, the Delaware Supreme Court cited and applied the correct law. To paraphrase Williams, while I believe the state court decision does not square with my “conception of how [Lindsey] ought to be applied in th[is] particular case, the decision is not ‘mutually opposed’ to [Lindsey] itself.” Williams, 120 S.Ct. at 1520. Nor is it unreasonable to hold that Delaware’s new law limited the factors that could be considered before sentence was imposed upon Ferguson, and still conclude that the law did not eliminate all discretion from the sentencing process. As the majority explains, that is something that Lindsey (and subsequent Supreme Court precedent) can be fairly said to require for a law to contravene the ex post facto prohibition.
Nor can I conclude that the Delaware Supreme Court was “objectively unreasonable” (as opposed to “incorrect”) in its application of, or “refusal to extend,” clearly established federal law to the facts of Ferguson’s case. Thus, while I concur in the Court’s judgment, I do so solely because I agree that the result we reach is required under AEDPA.
I also agree that Ferguson’s challenge to the duplicative nature of the aggravating factors must fail, but for reasons that I must distinguish from the analysis of my colleagues. I believe Ferguson’s “double counting of aggravating factors” claim fails solely because the trial judge in this case stated that he counted the robbery and pecuniary gain circumstances as one factor during the weighing process. The record is clear that the judge placed “no independent weight” on the pecuniary gain aggra-vator. It was the judge’s assessment of *257the sentencing factors, not the jury’s, that sealed Ferguson’s fate. Thus, regardless of the merits of Ferguson’s Eighth Amendment claim in the abstract, it is clear that the jury’s consideration of the two circumstances (though problematic) had no bearing on his sentence, and Ferguson can show no prejudice as a result. Nevertheless, I think Ferguson’s argument as to the alleged “double counting” is much stronger than the majority suggests, and I do not join the majority’s lengthy discussion of the merits of this claim. I do, however, join the majority’s conclusion that the record does not support the Delaware Supreme Court’s resolution of the claim, and the majority’s conclusion that Ferguson was not prejudiced by double counting because the sentencing judge didn’t double count.
Accordingly, for the reasons set forth above, I concur in the judgment of my colleagues.
. The tension inherent in this paradox is illustrated in the Court’s observation that:
When federal judges exercise their federal-question jurisdiction under the judicial power of Article III of the Constitution, it is emphatically the province and duty of those judges to say what the law is. At the core of this power is the federal courts' independent responsibility — independent from its coequal branches in the Federal Government, and independent from the separate authority of the several states — to interpret federal law. A construction of AEDPA that would require the federal courts to cede this authority to the courts of the States would be inconsistent with the practice that federal judges have traditionally followed in discharging their duties under Article III of the Constitution.
*253Williams, 120 S.Ct. at 1505 (Stevens, J., dissenting).
. However, this is not to suggest that an inquiry under either clause of ÁEDPA necessarily displaces an inquiry under the concomitant clause. We will often have to examine a state court decision under both clauses of AEDPA.
. The state disputes this latter figure, stating that 10 defendants were sentenced to death under the previous statute.