BELL v. CONE

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447 OCTOBER TERM, 2004
Per Curiam
BELL v. CONE
on petition for writ of certiorari to the united
states court of appeals for the sixth circuit
No. 04–394. Decided January 24, 2005
The Tennessee jury found that four aggravating circumstances, including
that the murders committed by respondent were “especially heinous,
atrocious, or cruel,” outweighed the mitigating evidence, and sentenced
respondent to death. His direct appeal and state collateral attacks
proved unsuccessful, and the Federal District Court denied habeas re-
lief. Ultimately, the Sixth Circuit reversed on the ground that the “es-
pecially heinous, atrocious, or cruel” aggravator was unconstitutionally
vague under the Eighth Amendment, and that the State Supreme Court
had not applied a narrowing construction adopted in its earlier Dicks
case to cure the aggravation.
Held: The Sixth Circuit had no power to issue a writ of habeas corpus.
Assuming that it correctly concluded that the State’s statutory aggra-
vating circumstance was facially vague, it erred in presuming that the
State Supreme Court did not cure that vagueness because the state
court neither mentioned nor cited Dicks. Under 28 U. S. C. § 2254(d)’s
“ ‘highly deferential standard for evaluating state-court rulings,’ ”
Woodford v. Visciotti, 537 U. S. 19, 24 (per curiam), federal courts are
not free to presume that a state court did not comply with constitutional
dictates based on nothing more than a lack of citation. In addition,
absent an affirmative indication to the contrary, this Court must pre-
sume that the Tennessee Supreme Court followed its established prece-
dent, as it had done numerous other times. Even absent that presump-
tion, this Court would still conclude that the state court applied the
narrower construction, since its reasoning here closely resembled its
rationale in cases where it had expressly done so. And that construc-
tion, the exact one approved by this Court in Proffitt v. Florida, 428
U. S. 242, 255, is not itself unconstitutionally vague.
Certiorari granted; 359 F. 3d 785, reversed and remanded.
Per Curiam.
The United States Court of Appeals for the Sixth Circuit
granted a writ of habeas corpus to respondent Gary Bradford
Cone after concluding that the “especially heinous, atrocious,
or cruel” aggravating circumstance found by the jury at the

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sentencing phase of his trial was unconstitutionally vague,
and that the Tennessee Supreme Court failed to cure any
constitutional deficiencies on appeal. 359 F. 3d 785, 799
(2004). Because this result fails to accord to the state court
the deference required by 28 U. S. C. § 2254(d), we grant the
petition for certiorari and respondent’s motion to proceed in
forma pauperis and reverse.
I
Respondent killed Shipley Todd, 93, and his wife Cleo-
patra, 79, on August 10, 1980, in their home at the conclusion
of a 2-day crime spree. The killings were accomplished in a
brutal and callous fashion: The elderly victims were “repeat-
edly beaten about the head until they died,” State v. Cone,
665 S. W. 2d 87, 90–91 (Tenn. 1984), and their bodies were
subsequently discovered “horribly mutilated and cruelly
beaten,” id., at 90. A Tennessee jury convicted respondent
of, inter alia, two counts of murder in the first degree and
two counts of murder in the first degree in the perpetration
of a burglary. At the conclusion of the penalty phase of re-
spondent’s trial, the jury unanimously found four aggravat-
ing circumstances 1 and concluded that they outweighed the
mitigating evidence. Respondent was sentenced to death.
The Tennessee Supreme Court affirmed respondent’s con-
victions and sentence. Id., at 96. As relevant here, the
court held that three of the aggravating circumstances found
by the jury “were clearly shown by the evidence.” Id., at
1 The jury found the following aggravating circumstances: (1) respond-
ent had been convicted of one or more felonies involving the use or threat
of violence to a person, (2) the murders were “especially heinous, atro-
cious, or cruel in that they involved torture or depravity of mind,” (3)
respondent committed the murders for the purpose of preventing a lawful
arrest or prosecution, and (4) respondent knowingly created a risk of death
to two or more persons, other than the victim murdered, during the mur-
der. See State v. Cone, 665 S. W. 2d 87, 94–95 (Tenn. 1984).

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94.2 With respect to the jury’s finding that the murders
were “especially heinous, atrocious, or cruel,” the court said:
“The jury also found that the murders in question
were especially heinous, atrocious, or cruel in that they
involved torture or depravity of mind as provided in
[Tenn. Code Ann.] § 39–2–203(i)(5). The evidence abun-
dantly established that both of the elderly victims had
been brutally beaten to death by multiple crushing
blows to the skulls. Blood was spattered throughout
the house, and both victims apparently had attempted
to resist, because numerous defensive wounds were
found on their persons. The only excuse offered in the
entire record for this unspeakably brutal conduct by the
accused was that these elderly victims had at some point
ceased to ‘cooperate’ with him in his ransacking of their
home and in his effort to flee from arrest. As pre-
viously stated, it was stipulated by counsel for [respond-
ent] that there was no issue of self-defense even
remotely suggested. The deaths of the victims were
not instantaneous, and obviously one had to be killed
before the other. The terror, fright and horror that
these elderly helpless citizens must have endured was
certainly something that the jury could have taken into
account in finding this aggravating circumstance.” Id.,
at 94–95.
Respondent twice sought relief from his conviction and
sentence in collateral proceedings in state court, to no avail.
In his second amended petition for postconviction relief,
respondent raised 52 independent claims of constitutional
2 The state court rejected the jury’s finding that respondent “ ‘knowingly
created a great risk of death to two (2) or more persons, other than the
victim murdered, during his act of murder,’ ” on the ground that the con-
siderable threat respondent posed to others earlier in the day was not
sufficiently close in time to the murders. Based on the strength of the
other aggravating circumstances before the jury, the court held this error
to be “harmless beyond a reasonable doubt.” Id., at 95.

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error, including a contention that the “especially heinous,
atrocious, or cruel” aggravating circumstance was unconsti-
tutionally vague under the Eighth Amendment. The state
trial court held each of respondent’s claims barred by Tenn.
Code Ann. § 40–30–111 (1990), which limited the grounds
that may be raised on collateral review to those not waived
or previously determined in previous proceedings. The
trial court explained that respondent’s constitutional chal-
lenge to the “heinous, atrocious, or cruel” aggravating cir-
cumstance, along with many other claims, was “clearly [a]
re-statemen[t] of previous grounds heretofore determined
and denied by the Tennessee Supreme Court upon Direct
Appeal or the Court of Criminal Appeals upon the First Peti-
tion.” Cone v. State, No. P–06874 (Tenn. Crim. Ct., Dec. 16,
1993), p. 6. The Tennessee Court of Criminal Appeals af-
firmed the denial of relief on all grounds. Cone v. State, 927
S. W. 2d 579, 582 (1995). The State Supreme Court denied
respondent permission to appeal.
II
In 1997, respondent sought a writ of habeas corpus under
28 U. S. C. § 2254 in the United States District Court for the
Western District of Tennessee, again asserting a multitude
of claims. The District Court denied relief; it held respond-
ent’s vagueness challenge to the “especially heinous, atro-
cious, or cruel” aggravating circumstance to be procedurally
barred by respondent’s failure to raise it on direct appeal
in state court. The Court of Appeals for the Sixth Circuit
subsequently held that respondent was entitled to relief on
another ground and did not consider respondent’s challenges
to the aggravating circumstances found by the jury. Cone
v. Bell, 243 F. 3d 961, 975 (2001). We reversed that judg-
ment. Bell v. Cone, 535 U. S. 685, 702 (2002).
On remand, the same panel of the Sixth Circuit again
granted respondent a writ of habeas corpus, this time with
one judge dissenting, on the ground that the “especially hei-

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nous, atrocious, or cruel” aggravator was unconstitutionally
vague under the Eighth Amendment. The court first re-
jected petitioner’s argument that respondent procedurally
defaulted the claim in state court. Based on its understand-
ing of state law, the court concluded that the State Supreme
Court’s statutorily mandated review of each death sentence,
see Tenn. Code Ann. § 39–2–205(c)(1) (1982), necessarily in-
cluded the consideration of constitutional deficiencies in the
aggravating circumstances found by the jury and therefore
that the issue was “fairly presented” to the state court, even
if respondent did not raise it himself.3 359 F. 3d, at 791–793.
Judge Norris dissented on this point. Id., at 806.
Turning to the merits, the Sixth Circuit held that the state
court’s affirmance of respondent’s sentence in light of the “es-
pecially heinous, atrocious, or cruel” aggravating circum-
stance was “contrary to” the clearly established principles
set forth in our decision in Godfrey v. Georgia, 446 U. S. 420
(1980). The Court of Appeals allowed that “[n]o Supreme
Court case has addressed the precise language at issue,” 359
F. 3d, at 795, and that no “Supreme Court decisio[n] is ‘on all
3 Petitioner argues that the Sixth Circuit’s conclusion in this regard is
in tension with the decisions of other Courts of Appeals, which have held
that a petitioner must raise his constitutional claim in state court in order
to preserve it, notwithstanding the existence of a mandatory-review stat-
ute. See Mu’min v. Pruett, 125 F. 3d 192, 197 (CA4 1997) (Virginia);
Martinez-Villareal v. Lewis, 80 F. 3d 1301, 1306 (CA9 1996) (Arizona);
Kornahrens v. Evatt, 66 F. 3d 1350, 1362 (CA4 1995) (South Carolina);
Nave v. Delo, 62 F. 3d 1024, 1039 (CA8 1995) (Missouri); Julius v. Johnson,
840 F. 2d 1533, 1546 (CA11 1988) (Alabama). We find it unnecessary to
express a view on this point. See 28 U. S. C. § 2254(b)(2) (an application
for habeas corpus may be denied on the merits, notwithstanding a petition-
er’s failure to exhaust in state court). We do emphasize that, as a general
matter, the burden is on the petitioner to raise his federal claim in the
state courts at a time when state procedural law permits its consideration
on the merits, even if the state court could have identified and addressed
the federal question without its having been raised. See Baldwin v.
Reese, 541 U. S. 27, 30–32 (2004).

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fours’ with the instruction in Cone’s case,” 4 id., at 796, but
nevertheless concluded, in light of Godfrey and the series of
cases that followed it, Maynard v. Cartwright, 486 U. S. 356
(1988), Walton v. Arizona, 497 U. S. 639 (1990), and Shell
v. Mississippi, 498 U. S. 1 (1990) (per curiam), that federal
law dictated the conclusion that the State’s “especially hein-
ous, atrocious, or cruel” aggravator was unconstitutionally
vague. 5 359 F. 3d, at 797. Lastly, the court rejected peti-
tioner’s argument that the Tennessee Supreme Court cured
any deficiency in the aggravating circumstance on direct
appeal by reviewing the jury’s finding under the narrowed
construction of the aggravator that it adopted in State v.
Dicks, 615 S. W. 2d 126 (1981). 359 F. 3d, at 797.
III
A federal court may grant a writ of habeas corpus based
on a claim adjudicated by a state court if the state-court
decision “was contrary to, or involved an unreasonable ap-
plication of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U. S. C.
§ 2254(d)(1). A state court’s decision is “contrary to . . .
clearly established Federal law” “if the state court applies a
4 The jury was instructed with respect to this aggravated circumstance
as follows:
“ ‘Heinous’ means extremely wicked or shockingly evil.
“ ‘Atrocious’ means outrageously wicked and vile.
“ ‘Cruel’ means designed to inflict a high degree of pain, utter indifference
to, or enjoyment of, the suffering of others, pitiless.” 359 F. 3d, at 794.
5 The court recognized that these cases postdated the Tennessee
Supreme Court’s 1984 decision on direct appeal, but, relying on Stringer
v. Black, 503 U. S. 222, 225 (1992) (which held that Cartwright did not
announce a “new rule” of constitutional law because its resolution was
dictated by Godfrey), concluded that these later cases were “not only ma-
terial, but controlling” and required the conclusion that Tennessee’s “hei-
nous, atrocious, or cruel” aggravating circumstance was unconstitutionally
vague on its face. 359 F. 3d, at 795. We assume, without deciding, that
the Court of Appeals was correct in this conclusion.

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rule that contradicts the governing law set forth in our
cases,” or “if the state court confronts facts that are materi-
ally indistinguishable from a relevant Supreme Court prece-
dent and arrives at a result opposite to ours.” Williams v.
Taylor, 529 U. S. 362, 405 (2000).
The law governing vagueness challenges to statutory
aggravating circumstances was summarized aptly in Walton,
supra, overruled on other grounds, Ring v. Arizona, 536
U. S. 584 (2002):
“When a federal court is asked to review a state
court’s application of an individual statutory aggravat-
ing or mitigating circumstance in a particular case, it
must first determine whether the statutory language de-
fining the circumstance is itself too vague to provide any
guidance to the sentencer. If so, then the federal court
must attempt to determine whether the state courts
have further defined the vague terms and, if they have
done so, whether those definitions are constitutionally
sufficient, i. e., whether they provide some guidance to
the sentencer.” Walton, supra, at 654.
These principles were plain enough at the time the State
Supreme Court decided respondent’s appeal. In Proffitt v.
Florida, 428 U. S. 242 (1976), we upheld the aggravating
circumstance that the murder was “ ‘especially heinous, atro-
cious, or cruel’ ” on the express ground that a narrowing con-
struction had been adopted by that State’s Supreme Court.
Id., at 255 ( joint opinion of Stewart, Powell, and Stevens,
JJ.). And, in Gregg v. Georgia, 428 U. S. 153 (1976), we re-
fused to invalidate the aggravating circumstance that the
murder was “ ‘outrageously or wantonly vile, horrible or
inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim,’ ” because “there [was] no
reason to assume that the Supreme Court of Georgia will
adopt . . . an open-ended construction” that is potentially
applicable to any murder. Id., at 201 ( joint opinion of

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Stewart, Powell, and Stevens, JJ.). See generally Lewis v.
Jeffers, 497 U. S. 764, 774–777 (1990) (reviewing cases).
Indeed, in Godfrey, 446 U. S. 420, the case on which the
Court of Appeals relied in declaring the aggravating circum-
stance to be unconstitutionally vague, the controlling plural-
ity opinion followed precisely this procedure. Like the
court below, the plurality looked first to the language of the
aggravating circumstance found by the jury and concluded
that there was “nothing in these few words, standing alone,
that implies any inherent restraint on the arbitrary and ca-
pricious infliction of the death sentence.” Id., at 428. But
the plurality did not stop there: It next evaluated whether
the Georgia Supreme Court “applied a constitutional con-
struction” of the aggravating circumstance on appeal. Id.,
at 432. Because the facts of the case did not resemble those
in which the state court had previously applied a narrower
construction of the aggravating circumstance and because
the state court gave no explanation for its decision other
than to say that the verdict was “ ‘factually substantiated,’ ”
the plurality concluded that it did not. Id., at 432–433. As
we have subsequently explained, this conclusion was the
linchpin of the Court’s holding: “Had the Georgia Supreme
Court applied a narrowing construction of the aggravator,
we would have rejected the Eighth Amendment challenge
to Godfrey’s death sentence, notwithstanding the failure to
instruct the jury on that narrowing construction.” Lam-
brix v. Singletary, 520 U. S. 518, 531 (1997). See also Wal-
ton, supra, at 653–654; Cartwright, supra, at 363–365 (refus-
ing to countenance the Oklahoma Court of Criminal Appeals’
affirmance of a death sentence based on a facially vague ag-
gravating circumstance where that court had not adopted a
narrowing construction of its aggravator when it affirmed
the prisoner’s sentence).6
6 In Ring v. Arizona, 536 U. S. 584 (2002), we held that the Sixth Amend-
ment requires a jury, rather than a judge, to find the aggravating circum-
stance that renders a defendant death eligible. Id., at 609. Because

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In this case, however, the Sixth Circuit rejected the possi-
bility that the Tennessee Supreme Court cured any error in
the jury instruction by applying a narrowing construction of
the statutory “heinous, atrocious, or cruel” aggravator. The
court asserted that the State Supreme Court “did not apply,
or even mention, any narrowing interpretation or cite to
[sic] Dicks,” the case in which the State Supreme Court had
adopted a narrowing construction of the aggravating circum-
stance. 359 F. 3d, at 797. “Instead,” the court said, “the
[state] court simply, but explicitly, satisfied itself that the la-
bels ‘heinous, atrocious, or cruel,’ without more, applied to
[respondent’s] crime.” Ibid.
We do not think that a federal court can presume so lightly
that a state court failed to apply its own law. As we have
said before, § 2254(d) dictates a “ ‘highly deferential standard
for evaluating state-court rulings,’ Lindh v. Murphy, 521
U. S. 320, 333, n. 7 (1997), which demands that state-court
decisions be given the benefit of the doubt.” Woodford v.
Visciotti, 537 U. S. 19, 24 (2002) (per curiam). To the ex-
tent that the Court of Appeals rested its decision on the
state court’s failure to cite Dicks, it was mistaken. Federal
courts are not free to presume that a state court did not
comply with constitutional dictates on the basis of nothing
more than a lack of citation. See Mitchell v. Esparza, 540
U. S. 12, 16 (2003) (per curiam); Early v. Packer, 537 U. S.
3, 8 (2002) (per curiam).
More importantly, however, we find no basis for the Court
of Appeals’ statement that the state court “simply, but ex-
plicitly, satisfied itself that the labels ‘heinous, atrocious, or
cruel,’ without more, applied” to the murder. 359 F. 3d, at
797. The state court’s opinion does not disclaim application
of that court’s established construction of the aggravating
Ring does not apply retroactively, Schriro v. Summerlin, 542 U. S. 348,
358 (2004), this case does not present the question whether an appellate
court may, consistently with Ring, cure the finding of a vague aggravating
circumstance by applying a narrower construction.

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circumstance; the only thing that it states “explicitly” is that
the evidence in this case supported the jury’s finding of the
statutory aggravator. See Cone, 665 S. W. 2d, at 95 (stating
that the aggravating circumstance was “indisputably estab-
lished by the record”). As we explain below, the State
Supreme Court had construed the aggravating circumstance
narrowly and had followed that precedent numerous times;
absent an affirmative indication to the contrary, we must pre-
sume that it did the same thing here. See Visciotti, supra,
at 24 (stating the presumption that state courts “know and
follow the law”); Lambrix, supra, at 532, n. 4; Walton, 497
U. S., at 653. That is especially true in a case such as this
one, where the state court has recognized that its narrowing
construction is constitutionally compelled and has affirma-
tively assumed the responsibility to ensure that the aggra-
vating circumstance is applied constitutionally in each case.
See State v. Pritchett, 621 S. W. 2d 127, 139, 140 (Tenn. 1981).
Even absent such a presumption in the state court’s favor,
however, we would still conclude in this case that the state
court applied the narrower construction of the “heinous,
atrocious, or cruel” aggravating circumstance. The State
Supreme Court’s reasoning in this case closely tracked its
rationale for affirming the death sentences in other cases in
which it expressly applied a narrowed construction of the
same “heinous, atrocious, or cruel” aggravator. Accord,
Godfrey, supra, at 432 (holding that “[t]he circumstances
of this case . . . do not satisfy the criteria [for torture] laid
out by the Georgia Supreme Court itself ” in its cases con-
struing the aggravating circumstance). The facts the court
relied on to affirm the jury’s verdict—that the elderly vic-
tims attempted to resist, that their deaths were not instanta-
neous, that respondent’s actions toward them were “un-
speakably brutal,” and that they endured “terror, fright and
horror” before being killed, 665 S. W. 2d, at 95—match, al-
most exactly, the reasons the state court gave when it held
the evidence in State v. Melson, 638 S. W. 2d 342, 367 (Tenn.

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1982), to be sufficient to satisfy the torture prong of the nar-
rowed “heinous, atrocious, or cruel” aggravating circum-
stance. See also Pritchett, supra, at 139 (finding the evi-
dence to be insufficient to satisfy a narrowed construction of
the aggravator where the victim’s death was “instanta-
neous”); State v. Campbell, 664 S. W. 2d 281, 284 (Tenn. 1984)
(holding that evidence of the aggravator was “overwhelm-
ing” where an elderly murder victim was beaten to death
with a blunt object and his hands showed that he had at-
tempted to defend himself). Similarly, the state court’s
findings that respondent’s victims had been “brutally beaten
to death by multiple crushing blows to the skulls,” that
“[b]lood was spattered throughout the house,” and that the
victims were helpless, 665 S. W. 2d, at 94–95, accord with the
reasons that the state court had previously found sufficient
to support findings of depravity of mind. See Melson,
supra, at 367; State v. Groseclose, 615 S. W. 2d 142, 151 (Tenn.
1981); Strouth v. State, 999 S. W. 2d 759, 766 (Tenn. 1999).
In sum, a review of the state court’s previous decisions inter-
preting and applying the narrowed construction of the “hei-
nous, atrocious, or cruel” aggravator leaves little doubt that
the State Supreme Court applied that same construction in
respondent’s case.7
The only remaining question is whether the narrowing
construction that the Tennessee Supreme Court applied was
7 We find additional support for this conclusion in the fact that respond-
ent’s argument to the State Supreme Court relied squarely on a case
in which that court had expressly formulated its narrowing construc-
tion of the aggravating circumstance and had applied that construction
to the benefit of the defendant. See Brief for Appellant in No.
02C019403CR00052 (Sup. Ct. Tenn. 1983), p. 20 (arguing, based on State v.
Pritchett, 621 S. W. 2d 127 (Tenn. 1981), that “the State did not show . . .
that the victims suffered”). Likewise, the two cases the State relied upon
in response to respondent’s argument also expressly applied a narrowing
construction of the “heinous, atrocious, or cruel” aggravator. See Brief
for Appellee in No. 02C019403CR00052 (Sup. Ct. Tenn. 1983), p. 34 (citing
Pritchett, supra, and State v. Melson, 638 S. W. 2d 342, 367 (Tenn. 1982)).

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itself unconstitutionally vague. See Walton, supra, at 654;
Godfrey, 446 U. S., at 428. It was not. In State v. Dicks,
615 S. W. 2d 126 (Tenn. 1981), the state court adopted the
exact construction of the aggravator that we approved in
Proffitt, 428 U. S., at 255: that the aggravator was “directed
at ‘the conscienceless or pitiless crime which is unnecessarily
torturous to the victim,’ ” Dicks, supra, at 132. See also
Sochor v. Florida, 504 U. S. 527, 536 (1992). In light of Prof-
fitt, we think this interpretation of the aggravator, standing
alone, would be sufficient to overcome the claim that the ag-
gravating circumstance applied by the state court was “con-
trary to” clearly established federal law under 28 U. S. C.
§ 2254(d)(1).
The State Supreme Court’s subsequent application of this
aggravating circumstance, as construed in Dicks, stands as
further proof that it could be applied meaningfully to narrow
the class of death-eligible offenders. Later in the year that
Dicks was decided, the court elaborated on the meaning of
the aggravator:
“Although the Tennessee aggravating circumstances
[sic] [that the murder was heinous, atrocious, or cruel]
does not contain the phrase, ‘an aggravated battery to
the victim[,]’ it is clear that a constitutional construction
of this aggravating circumstance requires evidence that
the defendant inflicted torture on the victim before
death or that [the] defendant committed acts evincing a
depraved state of mind; that the depraved state of mind
or the torture inflicted must meet the test of heinous,
atrocious, or cruel.” Pritchett, 621 S. W. 2d, at 139 (ci-
tation omitted).
With respect to the meaning of “torture,” the court held that
the aggravator was not satisfied where the victim dies in-
stantly, ibid., but that it was where “the uncontradicted
proof shows that [the victim] had defensive injuries to her
arms and hands, proving that there was time for her to real-

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ize what was happening, to feel fear, and to try to protect
herself,” Melson, 638 S. W. 2d, at 367. Accord, Cartwright,
486 U. S., at 364–365 (approving the limitation of the “hei-
nous, atrocious, or cruel” aggravating circumstance to kill-
ings in which the victim suffered “some kind of torture or
serious physical abuse” prior to the murder). As to “de-
pravity of mind,” the court held the fact that the defendant
fired a second shotgun blast into a victim after he was dead
to be insufficient as a matter of law, see Pritchett, supra, at
139 (explaining that the depravity in such an action falls
short of that exhibited by the defendant in Godfrey, supra),
but concluded that, “a killing wherein the victim is struck up
to thirty times, causing an entire room to be covered with a
spray of flying blood, and causing the victim’s brains to ex-
trude through the gaping hole in her skull,” sufficed, Melson,
supra, at 367.8 In light of these holdings, we are satisfied
that the State’s aggravating circumstance, as construed by
the Tennessee Supreme Court, ensured that there was a
“principled basis” for distinguishing between those cases in
which the death penalty was assessed and those cases in
which it was not. Arave v. Creech, 507 U. S. 463, 474 (1993).
In sum, even assuming that the Court of Appeals was cor-
rect to conclude that the State’s statutory aggravating cir-
cumstance was facially vague, the court erred in presuming
that the State Supreme Court failed to cure this vagueness
by applying a narrowing construction on direct appeal. The
state court did apply such a narrowing construction, and that
8 See also State v. Groseclose, 615 S. W. 2d 142, 151 (Tenn. 1981) (holding
that raping and stabbing a victim, before killing her by locking her in a
car trunk in the summer, satisfied the “heinous, atrocious, or cruel” aggra-
vating circumstance); Strouth v. State, 999 S. W. 2d 759, 766 (Tenn. 1999)
(quoting the State Supreme Court’s 1981 opinion denying rehearing, which
held that cutting the throat of a victim already rendered unconscious dem-
onstrated “depravity of mind” in that it was “cold-blooded, intentional,
conscienceless and pitiless”); State v. Dicks, 615 S. W. 2d 126, 132 (Tenn.
1981) (affirming the jury’s application of the “heinous, atrocious, or cruel”
aggravator to the same crime).

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Ginsburg, J., concurring
construction satisfied constitutional demands by ensuring
that respondent was not sentenced to death in an arbitrary
or capricious manner. See Godfrey, supra, at 428. The
state court’s affirmance of respondent’s sentence on this
ground was therefore not “contrary to . . . clearly established
Federal law,” 28 U. S. C. § 2254(d)(1), and the Court of Ap-
peals was without power to issue a writ of habeas corpus.
We reverse the judgment of the Sixth Circuit and remand
the case for further proceedings consistent with this opinion.
It is so ordered.
Justice Ginsburg, with whom Justice Souter and
Justice Breyer join, concurring.
The Sixth Circuit assumed that the Tennessee Supreme
Court, on direct appeal, adjudicated the merits of respond-
ent’s vagueness claim. See 359 F. 3d 785, 791–794 (2004); see
also ante, at 451. This Court indulges the same assumption.
See ante, at 456–457, 459 and this page. I agree with the
Court that, once the highest court of a State has dispositively
decided a point of law, it is not incumbent on that court to
cite its precedential decision in every case thereafter pre-
senting the same issue in order to demonstrate its adherence
to the pathmarking decision.
Today’s decision, as I comprehend it, is confined to the situ-
ation the Sixth Circuit posited, one in which the state court
has confronted and decided an issue governed by a prior
ruling. This Court’s opinion, it bears emphasis, does not
grapple with the following scenario: A state prisoner peti-
tions for federal habeas review after exhausting his state
remedies. In the anterior state proceeding, the prisoner
raised multiple issues. The state court, in disposing of the
case, left one or more of the issues unaddressed. There
would be no warrant, in such a case, for an assumption that
the state court, sub silentio, considered the issue and re-
solved it on the merits in accord with the State’s relevant
law. Nothing in the record would discount the possibil-

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461 Cite as: 543 U. S. 447 (2005)
Ginsburg, J., concurring
ity that the issue was simply overlooked. A federal court
would act arbitrarily if it assumed that an issue raised in
state court was necessarily decided there, despite the ab-
sence of any indication that the state court itself adverted to
the point.