SUPREME COURT OF THE UNITED
MARGARET BRADSHAW, WARDEN, PETITIONER
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 Courts 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 prosecutions presentation
of inconsistent theories violated his right to due process.
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
whether the court is obligated to apply the
Teague rule to the defendants 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 the inconsistent-theories claim in
his first federal habeas filings. See App. to Pet. for Cert.
134a140a. Instead, the District Court raised the issue
for Stumpf sua sponte, and ordered supplemental
briefing on the point. See App. 9798. The Courts
opinion does not preclude the State from advancing either of
these procedural defenses on remand in support of Stumpfs
Moreover, I agree with the Court that
Stumpf has never provided an explanation of how the
prosecutions 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 sentence. Stumpf
equally has never explained how the prosecutions use of
postsentence inconsistent argumentswhich were based on
evidence unavailable until after Stumpf was
sentencedcould have affected the reliability or
procedural fairness of his death sentence. At most, the
evidence and purportedly inconsistent theory presented at
Wesleys 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 Nations traditions have long
foreclosed, see Herrera v. Collins, 506 U.S. 390,
408417 (1993); id., at 427428 (Scalia, J.,
concurring). 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 factfinders attention. See ante,
at 2 (Souter, J., concurring) (noting that Wesleys jury
was informed that Stumpf had already been sentenced to death
for the crime).