HORN, COMMISSIONER, PENNSYLVANIA DEPART- MENT OF CORRECTIONS, et al. v. BANKS

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Syllabus
HORN, COMMISSIONER, PENNSYLVANIA DEPART-
MENT OF CORRECTIONS, et al. v. BANKS
on petition for writ of certiorari to the united
states court of appeals for the third circuit
No. 01–1385. Decided June 17, 2002
A Pennsylvania trial court sentenced respondent to death on each of his
12 convictions of first-degree murder. The verdict form in the trial’s
penalty phase required, in relevant part, the jury to check a box indi-
cating that it found unanimously either at least one aggravating cir-
cumstance and no mitigating circumstances or one or more aggravating
circumstances outweighing any mitigating circumstances. The jury
marked the latter box. After respondent’s direct appeal was denied,
this Court held that the Constitution prohibits a State from requiring
jurors unanimously to agree that a particular mitigating circumstance
exists before they may consider that circumstance in their sentencing
determination, Mills v. Maryland, 486 U. S. 367, 374. In subsequent
state postconviction proceedings, the Pennsylvania Supreme Court re-
jected respondent’s claim that the instructions to the jury and the ver-
dict forms in his case suggested that the mitigating circumstance find-
ings had to be unanimous. In denying his later federal habeas petition,
the District Court did not address whether Mills was retroactive, find-
ing instead the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) review standard dispositive. The Third Circuit reversed in
part, granting relief under Mills. It found that it did not need to evalu-
ate whether Mills applied retroactively per Teague v. Lane, 489 U. S.
288, because the State Supreme Court had not ruled on retroactivity,
and it found the state court’s application of federal law unreasonable
under Mills and Boyde v. California, 494 U. S. 370.
Held: The Third Circuit erred when it failed to perform a Teague analysis.
Whether to apply the Teague rule—that new constitutional rules of
criminal procedure generally do not apply to cases that became final
before the new rules were announced, 489 U. S., at 310—is a threshold
question in every habeas case. A federal court may decline to apply
Teague if a State does not argue it; but if the State does argue Teague,
the court must apply it before considering the claim’s merits. Caspari
v. Bohlen, 510 U. S. 383. Here, petitioners raised the Teague issue both
in the District Court and in the Third Circuit. To the extent that the
latter court’s opinion can be read to imply that AEDPA has changed
Caspari’s legal principles, none of this Court’s post-AEDPA cases have

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267 Cite as: 536 U. S. 266 (2002)
Per Curiam
suggested that habeas should automatically issue if a prisoner satisfies
the AEDPA review standard or that AEDPA relieves courts from the
responsibility of addressing properly raised Teague arguments.
Certiorari granted; reversed and remanded.
Per Curiam.
The Court of Appeals for the Third Circuit granted re-
spondent federal habeas corpus relief from his death sen-
tence. 271 F. 3d 527 (2001). Applying the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) standard
of review,1 the Court of Appeals concluded that the Pennsyl-
vania Supreme Court had unreasonably applied federal law
in evaluating respondent’s claim that his penalty phase jury
instructions and verdict forms were improper under Mills
v. Maryland, 486 U. S. 367 (1988). The Court of Appeals
found it unnecessary to evaluate whether Mills applies ret-
roactively to cases on habeas review per Teague v. Lane, 489
U. S. 288 (1989), because the Pennsylvania Supreme Court
had not ruled on retroactivity. 271 F. 3d, at 541–543. In
avoiding the Teague issue, the Court of Appeals directly con-
travened Caspari v. Bohlen, 510 U. S. 383 (1994), in which
we held that federal courts must address the Teague ques-
tion when it is properly argued by the government. We
thus grant the petition for a writ of certiorari and reverse
the Court of Appeals’ determination that a Teague analysis
was unnecessary.2
1 Title 28 U. S. C. § 2254(d) was modified by AEDPA and now provides,
in part, that “[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim . . . resulted
in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court
of the United States.”
2 We also grant respondent’s motion for leave to proceed in forma
pauperis.

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268 HORN v. BANKS
Per Curiam
Respondent, George Banks, was convicted of 12 counts of
first-degree murder stemming from a series of shootings on
September 25, 1982. During the penalty phase of his trial,
the jury was instructed, in part:
“The sentence you impose will depend upon your find-
ings concerning aggravating and mitigating circum-
stances. The Crime[s] Code in this Commonwealth
provides that the verdict must be a sentence of death
if the jury unanimously finds at least one aggravating
circumstance and no mitigating circumstance, or if the
jury unanimously finds one or more aggravating circum-
stances which outweigh any mitigating circumstance or
circumstances.” Commonwealth v. Banks, 540 Pa. 143,
150, 656 A. 2d 467, 470 (1995).
In relevant part, the verdict form required the jury to check
a box indicating that “[w]e the jury have found unanimously”
either “[a]t least one aggravating circumstance and no miti-
gating circumstances,” or “[o]ne or more aggravating circum-
stances which outweigh any mitigating circumstance or cir-
cumstances.” 271 F. 3d, at 549–550. The jury marked the
latter box, and also checked two other boxes indicating the
aggravating circumstance (multiple offenses punishable by at
least life in prison) and mitigating circumstance (extreme
mental or emotional disturbance) that it had found. Re-
spondent was sentenced to death on each count of first-
degree murder.
After respondent’s direct appeal was denied, we decided
Mills, in which we held that the Constitution prohibits
a State from requiring jurors unanimously to agree that a
particular mitigating circumstance exists before they are
permitted to consider that circumstance in their sentencing
determination. 486 U. S., at 374. Subsequently, in state
postconviction proceedings, respondent raised a Mills chal-
lenge to the jury instructions and verdict forms in his case,
arguing that they improperly “suggested to the jury that its

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findings as to mitigating circumstances must be unanimous.”
540 Pa., at 149, 656 A. 2d, at 470. The Pennsylvania Su-
preme Court rejected his claim: “[B]oth the verbal instruc-
tions given by the court as well as the instructions printed
on the verdict slips were correct and not impermissibly sug-
gestive of a unanimity requirement with respect to mitigat-
ing circumstances.” Id., at 153, 656 A. 2d, at 471.
Respondent petitioned for federal habeas relief, which the
United States District Court for the Middle District of Penn-
sylvania denied. 63 F. Supp. 2d 525 (1999). The District
Court rejected respondent’s Mills claim on the merits,
applying the AEDPA standard of review articulated in 28
U. S. C. § 2254(d): “Supreme Court precedent . . . did not re-
quire an outcome contrary to that reached by the state
courts.” 63 F. Supp. 2d, at 544. Because the court found
the AEDPA standard of review dispositive, it did “not ad-
dress the parties’ arguments concerning the retroactivity of
Mills.” Ibid.
The Court of Appeals for the Third Circuit reversed the
District Court in part, granting respondent relief from his
death sentence under Mills. The Court of Appeals first
asked: “Are we compelled to conduct a retroactivity analysis
under Teague?” 271 F. 3d, at 541. It recognized that, per
Teague, retroactivity is a “ ‘threshold question,’ ” but it found
“Teague not to govern [its] analysis” in this case because “we
do not need to focus on anything other than the reasoning
and determination of the Pennsylvania Supreme Court,”
which had not ruled on retroactivity. 271 F. 3d, at 541, and
n. 13.3 It rejected petitioners’ contention that the state
court’s failure to rule on retroactivity was irrelevant to
whether Teague should apply in federal court:
3 In deciding not to conduct a Teague analysis, the Court of Appeals
“acknowledge[d] further that the Pennsylvania Supreme Court has spe-
cifically noted its skepticism regarding the retroactive application of
Mills” and has disagreed with the Court of Appeals’ resolution of Mills
claims similar to respondent’s. 271 F. 3d, at 542.

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270 HORN v. BANKS
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“Teague teaches that the federal courts habeas corpus
proceeding should be reluctant to apply new rules of fed-
eral jurisprudence in state court cases decided before
such new rules were handed down. Principles of com-
ity and finality counsel that we maintain a circumscribed
scope of habeas review. . . Here, however as we have
noted, the Pennsylvania Supreme Court applied Mills.
We are examining the application of Mills, not because
we wish to impose a new rule not considered by the
Pennsylvania Supreme Court, but as the court in fact
did consider and apply it. In such a situation, Teague
is not implicated. Accordingly, we need ask only
whether the Pennsylvania Supreme Court’s application
of Mills should be disturbed under the AEDPA stand-
ards.” 271 F. 3d, at 543 (citation omitted).
Freed from performing a Teague analysis concerning
Mills’ retroactivity, a question which has created some
disagreement among the Federal Circuits,4 the Court of
Appeals asked “whether the Pennsylvania Supreme Court
determination regarding the constitutionality of the instruc-
tions, verdict slip, and polling of the jury involved an unrea-
sonable application of Mills.” 271 F. 3d, at 544. It then
found the state court’s application of federal law unreason-
able under the standards of 28 U. S. C. § 2254(d), relying on
both Mills and Boyde v. California, 494 U. S. 370 (1990).
271 F. 3d, at 551. The Court of Appeals explained that,
“[c]onsidered as a whole, the jury instructions leave no doubt
that ‘there is a reasonable likelihood that the jury has ap-
plied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.’ ” Id., at
549 (quoting Boyde, supra, at 380).
4 Compare Gall v. Parker, 231 F. 3d 265, 322 (CA6 2000) (Teague does
not bar retroactive application of Mills), and Williams v. Dixon, 961 F. 2d
448, 456 (CA4 1992) (same), with Miller v. Lockhart, 65 F. 3d 676, 685–686
(CA8 1995) (Teague bars retroactive application of Mills), and Cordova v.
Collins, 953 F. 2d 167, 173 (CA5 1992) (same).

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Petitioners seek a writ of certiorari, arguing that the
Court of Appeals erred by not performing a Teague analysis,
by applying Mills retroactively to respondent’s case, and by
concluding that the state court’s decision was unreasonable
under Mills. We find it unnecessary to resolve the latter
two of these claims, because we determine that the Court
of Appeals committed a clear error by failing to perform a
Teague analysis.
In Teague, we explained that “[u]nless they fall within an
exception to the general rule, new constitutional rules of
criminal procedure will not be applicable to those cases
which have become final before the new rules are an-
nounced.” 489 U. S., at 310.5 And in Caspari, we held that
“[a] threshold question in every habeas case, therefore, is
whether the court is obligated to apply the Teague rule to
the defendant’s claim. . . . [A] federal court may, but need
not, decline to apply Teague if the State does not argue it.
But 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.”
510 U. S., at 389 (citations omitted). Here, petitioners raised
the Teague issue both in the District Court, see 63 F. Supp.
2d, at 544, and in the Court of Appeals, see 271 F. 3d, at
542–543. Thus, per Caspari, a case not cited in the opinion
below, it was incumbent upon the Court of Appeals to per-
form a Teague analysis before granting respondent relief
under Mills. The Court of Appeals erred in concluding that
it did “not need to focus on anything other than the reason-
5 We have recognized two exceptions to Teague’s rule. “The first excep-
tion permits the retroactive application of a new rule if the rule places a
class of private conduct beyond the power of the State to proscribe, . . .
or addresses a ‘substantive categorical guarante[e] accorded by the Consti-
tution,’ such as a rule ‘prohibiting a certain category of punishment for a
class of defendants because of their status or offense.’ ” Saffle v. Parks,
494 U. S. 484, 494 (1990) (citations omitted). “The second exception is for
‘watershed rules of criminal procedure’ implicating the fundamental fair-
ness and accuracy of the criminal proceeding.” Id., at 495.

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ing and determination of the Pennsylvania Supreme Court.”
271 F. 3d, at 541.
Although the Court of Appeals may have simply over-
looked Caspari, its opinion can also be read to imply that
AEDPA has changed the relevant legal principles articulated
in Caspari, see 271 F. 3d, at 541, n. 13 (“We note, however,
that recent decisions have called into question to what ex-
tent Teague has continued force independent of AEDPA”).
While it is of course a necessary prerequisite to federal ha-
beas relief that a prisoner satisfy the AEDPA standard of
review set forth in 28 U. S. C. § 2254(d) (“[a]n application . . .
shall not be granted . . . unless” the AEDPA standard of
review is satisfied (emphasis added)), none of our post-
AEDPA cases have suggested that a writ of habeas corpus
should automatically issue if a prisoner satisfies the AEDPA
standard, or that AEDPA relieves courts from the responsi-
bility of addressing properly raised Teague arguments. To
the contrary, if our post-AEDPA cases suggest anything
about AEDPA’s relationship to Teague, it is that the AEDPA
and Teague inquiries are distinct. See, e. g., Tyler v. Cain,
533 U. S. 656, 669–670 (2001) (O’Connor, J., concurring) (con-
struing successive application provisions of AEDPA, 28
U. S. C. § 2244(b)(2)(A)); Williams v. Taylor, 529 U. S. 362,
412–413 (2000) (construing § 2254(d)). Thus, in addition to
performing any analysis required by AEDPA, a federal court
considering a habeas petition must conduct a threshold
Teague analysis when the issue is properly raised by the
state.
We reverse the Court of Appeals’ holding that “Teague is
not implicated” by this case, 271 F. 3d, at 543, and remand
for further proceedings consistent with this opinion.
It is so ordered.