BRADSHAW, WARDEN v. STUMPF

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Syllabus
BRADSHAW, WARDEN v. STUMPF
certiorari to the united states court of appeals for
the sixth circuit
No. 04–637. Argued April 19, 2005—Decided June 13, 2005
Respondent Stumpf and his accomplice Wesley committed an armed rob
bery that left Mr. Stout wounded and Mrs. Stout dead. Stumpf ad
mitted shooting Mr. Stout but has always denied killing Mrs. Stout. In
Ohio state court proceedings, Stumpf pleaded guilty to, among other
things, aggravated murder and one of three capital murder specifica
tions charged in his indictment. This left Stumpf eligible for the death
penalty. In a contested penalty hearing before a three-judge panel,
Stumpf ’s principal mitigation arguments were that he had participated
in the robbery at Wesley’s urging, that Wesley had killed Mrs. Stout,
and that Stumpf ’s minor role in the murder counseled against the death
sentence. The State, however, claimed that Stumpf had shot Mrs.
Stout, and that he therefore was the principal offender in her murder.
In the alternative, the State noted that even an accomplice can be sen
tenced to death under Ohio law if he acted with the specific intent to
cause death, and the State argued that such intent could be inferred
from the circumstances of the robbery regardless of who actually shot
Mrs. Stout. The panel concluded that Stumpf was the principal of
fender and sentenced him to death. At Wesley’s subsequent jury trial,
however, the State presented evidence that Wesley had admitted to
shooting Mrs. Stout. But Wesley argued that the prosecutor had taken
a contrary position in Stumpf ’s trial, and Wesley was sentenced to life
in prison with the possibility of parole. After Wesley’s trial, Stumpf
moved to withdraw his own plea or vacate his death sentence, arguing
that the evidence endorsed by the State in Wesley’s trial cast doubt on
Stumpf ’s conviction and sentence. This time, however, the prosecutor
emphasized other evidence confirming Stumpf as the shooter and again
raised, in the alternative, the aider-and-abettor theory. The court de
nied Stumpf ’s motion, and Ohio’s appellate courts affirmed. Subse
quently, the Federal District Court denied Stumpf habeas relief, but the
Sixth Circuit reversed on two grounds. First, the Sixth Circuit found
that Stumpf had not understood that specific intent to cause death was
a necessary element of the aggravated murder charge, and that his
guilty plea therefore had not been knowing, voluntary, and intelligent.
Second, the court found that the conviction and sentence could not stand

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Syllabus
because the State had secured convictions of both Stumpf and Wesley
for the same crime, using inconsistent theories.
Held:
1. The Sixth Circuit erred in concluding that Stumpf was uninformed
of the aggravated murder charge’s specific intent element. While a
guilty plea is invalid if the defendant has not been informed of the
crime’s elements, Stumpf ’s attorneys represented at his plea hearing
that they had explained the elements to their client, and Stumpf con
firmed that the representation was true. This Court has never held
that the judge must himself explain a crime’s elements to the defendant.
Rather, constitutional requirements may be satisfied where the record
accurately reflects that the charge’s nature and the crime’s elements
were explained to the defendant by his own, competent counsel.
Stumpf argues that his plea was so inconsistent with his denial of having
shot Mrs. Stout that he could only have pleaded guilty out of ignorance
of the aggravated murder charge’s specific intent element. But that
argument fails because Stumpf ’s conviction did not require a showing
that Stumpf had shot Mrs. Stout. Ohio law also considers aiders and
abettors who act with specific intent to cause death liable for aggravated
murder. Stumpf and Wesley entered the Stout home with guns, intend
ing to commit armed robbery, and Stumpf admitted shooting Mr. Stout.
Taken together, these facts could show that the two men had agreed to
kill both Stouts, which in turn could make both men guilty of aggravated
murder regardless of who shot Mrs. Stout. Stumpf ’s claim that he and
his attorneys were confused about the relevance and timing of defenses
that they planned to make is not supported by the record. Finally, the
plea’s validity may not be collaterally attacked on the ground that
Stumpf made what he now claims was a bad deal. Pp. 182–186.
2. The Sixth Circuit was also wrong to hold that prosecutorial in
consistencies between the Stumpf and Wesley cases required voiding
Stumpf ’s guilty plea. The precise identity of the triggerman was imma
terial to Stumpf ’s aggravated murder conviction, and Stumpf has never
explained how the prosecution’s postplea use of inconsistent arguments
could have affected the knowing, voluntary, and intelligent nature of his
plea. Pp. 186–187.
3. The prosecutor’s use of allegedly inconsistent theories may have a
more direct effect on Stumpf ’s sentence, however, for it is arguable that
the sentencing panel’s conclusion about his role was material to its sen
tencing determination. The opinion below leaves some ambiguity as to
the overlap between how the lower court resolved Stumpf ’s due process
challenge to his conviction and how it resolved his challenge to his sen
tence. It is not clear whether the Court of Appeals would have found

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Stumpf entitled to resentencing had it not also considered the conviction
invalid. Likewise, the parties’ briefing here, and the question on which
this Court granted certiorari, largely focused on the conviction. In
these circumstances, it would be premature for this Court to resolve the
merits of Stumpf ’s sentencing claim before giving the Sixth Circuit the
opportunity to consider in the first instance the question of how the
prosecutor’s conduct in the Stumpf and Wesley cases related to Stumpf ’s
death sentence in particular. Pp. 187–188.
367 F. 3d 594, reversed in part, vacated in part, and remanded.
O’Connor, J., delivered the opinion for a unanimous Court. Souter,
J., filed a concurring opinion, in which Ginsburg, J., joined, post, p. 188.
Thomas, J., filed a concurring opinion, in which Scalia, J., joined, post,
p. 190.
Douglas R. Cole, State Solicitor of Ohio, argued the cause
for petitioner. With him on the briefs were Jim Petro, At
torney General, Diane Richards Brey, Deputy Solicitor, and
Charles L. Wille, Henry G. Appel, Stephen E. Maher, and
Franklin E. Crawford, Assistant Solicitors.
Alan M. Freedman, by appointment of the Court, 543 U. S.
1143, argued the cause for respondent. With him on the
brief were Carol R. Heise, Laurence E. Komp, Gary Prich
ard, and Michael J. Benza.*
Justice O’Connor delivered the opinion of the Court.
This case concerns respondent John David Stumpf ’s con
viction and death sentence for the murder of Mary Jane
Stout. In adjudicating Stumpf ’s petition for a writ of ha
beas corpus, the United States Court of Appeals for the
Sixth Circuit granted him relief on two grounds: that his
guilty plea was not knowing, voluntary, and intelligent, and
that his conviction and sentence could not stand because the
State, in a later trial of Stumpf ’s accomplice, pursued a the
ory of the case inconsistent with the theory it had advanced
*Ellen S. Podgor and Joshua L. Dratel filed a brief for the National
Association of Criminal Defense Lawyers as amicus curiae urging
affirmance.

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in Stumpf ’s case. We granted certiorari to review both
holdings. 543 U. S. 1042 (2005).
I
On May 14, 1984, Stumpf and two other men, Clyde Dan
iel Wesley and Norman Leroy Edmonds, were traveling in
Edmonds’ car along Interstate 70 through Guernsey County,
Ohio. Needing money for gas, the men stopped the car
along the highway. While Edmonds waited in the car,
Stumpf and Wesley walked to the home of Norman and Mary
Jane Stout, about 100 yards away. Stumpf and Wesley, each
concealing a gun, talked their way into the home by telling
the Stouts they needed to use the phone. Their real object,
however, was robbery: Once inside, Stumpf held the Stouts
at gunpoint, while Wesley ransacked the house. When
Mr. Stout moved toward Stumpf, Stumpf shot him twice in
the head, causing Mr. Stout to black out. After he regained
consciousness, Mr. Stout heard two male voices coming from
another room, and then four gunshots—the shots that killed
his wife. Edmonds was arrested shortly afterward, and his
statements led the police to issue arrest warrants for Stumpf
and Wesley. Stumpf, who surrendered to the police, at first
denied any knowledge of the crimes. After he was told that
Mr. Stout had survived, however, Stumpf admitted to partici
pating in the robbery and to shooting Mr. Stumpf. But he
claimed not to have shot Mrs. Stout, and he has maintained
that position ever since.
The proceedings against Stumpf occurred while Wesley,
who had been arrested in Texas, was still resisting extradi
tion to Ohio. Stumpf was indicted for aggravated murder,
attempted aggravated murder, aggravated robbery, and two
counts of grand theft. With respect to the aggravated mur
der charge, the indictment listed four statutory “specifica
tions”—three of them aggravating circumstances making
Stumpf eligible for the death penalty. See App. 117–118;

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Ohio Rev. Code Ann. § 2929.03 (Anderson 1982).* The case
was assigned to a three-judge panel in the Court of Com
mon Pleas.
Rather than proceed to trial, however, Stumpf and the
State worked out a plea agreement: Stumpf would plead
guilty to aggravated murder and attempted aggravated mur
der, and the State would drop most of the other charges;
with respect to the aggravated murder charge, Stumpf
would plead guilty to one of the three capital specifications,
with the State dropping the other two. The plea was ac
cepted after a colloquy with the presiding judge, and after a
hearing in which the panel satisfied itself as to the factual
basis for the plea.
Because the capital specification to which Stumpf pleaded
guilty left him eligible for the death penalty, a contested pen
alty hearing was held before the same three-judge panel.
Stumpf ’s mitigation case was based in part on his difficult
childhood, limited education, dependable work history, youth,
and lack of prior serious offenses. Stumpf ’s principal argu
ment, however, was that he had participated in the plot only
at the urging and under the influence of Wesley, that it was
Wesley who had fired the fatal shots at Mrs. Stout, and that
Stumpf ’s assertedly minor role in the murder counseled
against the death sentence. See § 2929.04(B)(6) (directing
the sentencer to consider as a potential mitigating circum
stance, “[i]f the offender was a participant in the offense but
not the principal offender, the degree of the offender’s partic
ipation in the offense”). The State, on the other hand, ar
gued that Stumpf had indeed shot Mrs. Stout. Still, while
the prosecutor claimed Stumpf ’s allegedly primary role in
the shooting as a special reason to reject Stumpf ’s mitigation
argument, the prosecutor also noted that Ohio law did not
restrict the death penalty to those who commit murder by
their own hands—an accomplice to murder could also receive
*Unless otherwise noted, all citations to Ohio statutes refer to the ver
sions of those statutes in effect in 1984, at the time of the crime and trial.

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the death penalty, so long as he acted with the specific intent
to cause death. As a result, the State argued, Stumpf de
served death even if he had not personally shot Mrs. Stout,
because the circumstances of the robbery provided a basis
from which to infer Stumpf ’s intent to cause death. The
three-judge panel, agreeing with the State’s first contention,
specifically found that Stumpf “was the principal offender”
in the aggravated murder of Mrs. Stout. App. 196. Deter
mining that the aggravating factors in Stumpf ’s case out
weighed any mitigating factors, the panel sentenced Stumpf
to death.
Afterward, Wesley was successfully extradited to Ohio to
stand trial. His case was tried to a jury, before the same
judge who had presided over the panel overseeing Stumpf ’s
proceedings, and with the same prosecutor. This time, how
ever, the prosecutor had new evidence: James Eastman, Wes
ley’s cellmate after his extradition, testified that Wesley had
admitted to firing the shots that killed Mrs. Stout. The
prosecutor introduced Eastman’s testimony in Wesley’s trial,
and in his closing argument he argued for Eastman’s credibil
ity and lack of motive to lie. The prosecutor claimed that
Eastman’s testimony, combined with certain circumstantial
evidence and with the implausibility of Wesley’s own account
of events, proved that Wesley was the principal offender in
Mrs. Stout’s murder—and that Wesley therefore deserved to
be put to death. One way Wesley countered this argument
was by noting that the prosecutor had taken a contrary posi
tion in Stumpf ’s trial, and that Stumpf had already been sen
tenced to death for the crime. Wesley also took the stand
in his own defense, and testified that Stumpf had shot
Mrs. Stout. In the end, the jury sentenced Wesley to life
imprisonment with the possibility of parole after 20 years.
After the Wesley trial, Stumpf, whose direct appeal was
still pending in the Ohio Court of Appeals, returned to the
Court of Common Pleas with a motion to withdraw his guilty
plea or vacate his death sentence. Stumpf argued that

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Eastman’s testimony, and the prosecution’s endorsement of
that testimony in Wesley’s trial, cast doubt upon Stumpf ’s
conviction and sentence. The State (represented again by
the same prosecutor who had tried both Wesley’s case and
Stumpf ’s original case) disagreed. According to the prose
cutor, the court’s first task was to decide whether the East
man testimony was sufficient to alter the court’s prior deter
mination that Stumpf had been the shooter. Id., at 210.
Contrary to the argument he had presented in the Wesley
trial, however, the prosecutor now noted that Eastman’s tes
timony was belied by certain other evidence (ballistics evi
dence and Wesley’s testimony in his own defense) confirming
Stumpf to have been the primary shooter. In the alterna
tive, the State noted as it had before that an aider-and
abettor theory might allow the death sentence to be imposed
against Stumpf even if he had not shot Mrs. Stout.
Although one judge speculated during oral argument that
the court’s earlier conclusion about Stumpf ’s principal role
in the killing “may very well have had an effect upon” the
prior sentencing determination, ibid., the Court of Common
Pleas denied Stumpf ’s motion in a brief summary order with
out explanation. That order was appealed together with the
original judgment in Stumpf ’s case, and the Ohio Court of
Appeals affirmed, as did the Ohio Supreme Court. State v.
Stumpf, 32 Ohio St. 3d 95, 512 N. E. 2d 598 (1987), cert.
denied, 484 U. S. 1079 (1988).
After a subsequent request for state postconviction relief
was denied by the state courts, Stumpf filed this federal
habeas petition in the United States District Court for the
Southern District of Ohio in November 1995. The District
Court denied Stumpf relief, but granted permission to appeal
on four claims, including the two at issue here. The United
States Court of Appeals for the Sixth Circuit reversed, con
cluding that habeas relief was warranted on “either or both”
of “two alternative grounds.” Stumpf v. Mitchell, 367 F. 3d
594, 596 (2004). First, the court determined that Stumpf ’s

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guilty plea was invalid because it had not been entered
knowingly and intelligently. More precisely, the court con
cluded that Stumpf had pleaded guilty to aggravated murder
without understanding that specific intent to cause death
was a necessary element of the charge under Ohio law. See
Ohio Rev. Code Ann. §§ 2903.01(B) and (D). Noting that
Stumpf had all along denied shooting Mrs. Stout, and con
sidering those denials inconsistent with an informed choice
to plead guilty to aggravated murder, the Court of Appeals
concluded that Stumpf must have entered his plea out of
ignorance. Second, the court concluded that “Stumpf ’s due
process rights were violated by the state’s deliberate action
in securing convictions of both Stumpf and Wesley for the
same crime, using inconsistent theories.” 367 F. 3d, at 596.
This violation, the court held, required setting aside “both
Stumpf ’s plea and his sentence.” Id., at 616. One member
of the panel dissented.
II
Because Stumpf filed his habeas petition before enactment
of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), we review his claims under the standards of the
pre-AEDPA habeas statute. See Lindh v. Murphy, 521
U. S. 320 (1997). Moreover, because petitioner has not ar
gued that Stumpf ’s habeas claims were barred as requiring
announcement of a new rule, we do not apply the rule of
Teague v. Lane, 489 U. S. 288 (1989), to this case. See Schiro
v. Farley, 510 U. S. 222, 229 (1994); Godinez v. Moran, 509
U. S. 389, 397, n. 8 (1993).
A
The Court of Appeals concluded that Stumpf ’s plea of
guilty to aggravated murder was invalid because he was not
aware of the specific intent element of the charge—a deter
mination we find unsupportable.
Stumpf ’s guilty plea would indeed be invalid if he had not
been aware of the nature of the charges against him, includ

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ing the elements of the aggravated murder charge to which
he pleaded guilty. A guilty plea operates as a waiver of im
portant rights, and is valid only if done voluntarily, know
ingly, and intelligently, “with sufficient awareness of the rele
vant circumstances and likely consequences.” Brady v.
United States, 397 U. S. 742, 748 (1970). Where a defendant
pleads guilty to a crime without having been informed of the
crime’s elements, this standard is not met and the plea is
invalid. Henderson v. Morgan, 426 U. S. 637 (1976).
But the Court of Appeals erred in finding that Stumpf had
not been properly informed before pleading guilty. In
Stumpf ’s plea hearing, his attorneys represented on the rec
ord that they had explained to their client the elements of
the aggravated murder charge; Stumpf himself then con
firmed that this representation was true. See App. 135,
137–138. While the court taking a defendant’s plea is re
sponsible for ensuring “a record adequate for any review that
may be later sought,” Boykin v. Alabama, 395 U. S. 238, 244
(1969) (footnote omitted), we have never held that the judge
must himself explain the elements of each charge to the de
fendant on the record. Rather, the constitutional prerequi
sites of a valid plea may be satisfied where the record accu
rately reflects that the nature of the charge and the elements
of the crime were explained to the defendant by his own,
competent counsel. Cf. Henderson, supra, at 647 (granting
relief to a defendant unaware of the elements of his crime,
but distinguishing that case from others where “the record
contains either an explanation of the charge by the trial
judge, or at least a representation by defense counsel that
the nature of the offense has been explained to the accused”).
Where a defendant is represented by competent counsel, the
court usually may rely on that counsel’s assurance that the
defendant has been properly informed of the nature and ele
ments of the charge to which he is pleading guilty.
Seeking to counter this natural inference, Stumpf argues,
in essence, that his choice to plead guilty to the aggravated

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murder charge was so inconsistent with his denial of having
shot the victim that he could only have pleaded guilty out of
ignorance of the charge’s specific intent requirement. But
Stumpf ’s asserted inconsistency is illusory. The aggravated
murder charge’s intent element did not require any showing
that Stumpf had himself shot Mrs. Stout. Rather, Ohio law
considers aiders and abettors equally in violation of the ag
gravated murder statute, so long as the aiding and abetting
is done with the specific intent to cause death. See In re
Washington, 81 Ohio St. 3d 337, 691 N. E. 2d 285 (1998);
State v. Scott, 61 Ohio St. 2d 155, 165, 400 N. E. 2d 375, 382
(1980). As a result, Stumpf ’s steadfast assertion that he had
not shot Mrs. Stout would not necessarily have precluded
him from admitting his specific intent under the statute.
That is particularly so given the other evidence in this
case. Stumpf and Wesley had gone to the Stouts’ home to
gether, carrying guns and intending to commit armed rob
bery. Stumpf, by his own admission, shot Mr. Stout in the
head at close range. Taken together, these facts could show
that Wesley and Stumpf had together agreed to kill both of
the Stouts in order to leave no witnesses to the crime. And
that, in turn, could make both men guilty of aggravated mur
der regardless of who actually killed Mrs. Stout. See ibid.
Stumpf also points to aspects of the plea hearing transcript
which he says show that both he and his attorneys were con
fused about the relevance and timing of defenses Stumpf and
his attorneys had planned to make. First, at one point dur
ing the hearing, the presiding judge stated that by pleading
guilty Stumpf would waive his trial rights and his right to
testify in his own behalf. Stumpf ’s attorney answered that
Stumpf “was going to respond but we have informed him
that there is, after the plea, a hearing or trial relative to the
underlying facts so that he is of the belief that there will
be [a] presentation of evidence.” App. 140. The presiding
judge responded that “[o]f course in the sentencing portion
of this trial you do have those rights to speak in your own

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behalf [and] to present evidence and testimony on your own
behalf.” Ibid. A few moments later, there was another ex
change along similar lines, after the judge asked Stumpf
whether he was “in fact guilty of ” the aggravated murder
charge and its capital specification:
“[DEFENSE COUNSEL]: . . . Your Honor, the defend
ant has asked me to explain his answer. His answer is
yes. He will recite that with obviously his understand
ing of his right to present evidence at a later time
relative to his conduct, but he’ll respond to that.
“JUDGE HENDERSON: At no time am I implying that
the defendant will not have the right to present evidence
in [the] mitigation hearing . . . . And I’m going to ask
that the defendant, himself, respond to the question that
I asked with that understanding that he has the right
to present evidence in mitigation. I’m going to ask the
defendant if he is in fact guilty of the charge set forth
in Count one, including specification one . . . ?
“THE DEFENDANT: Yes, sir.” Id., at 142.
Reviewing this exchange, the Court of Appeals concluded
that Stumpf “obviously . . . was reiterating his desire to chal
lenge the [S]tate’s account of his actions”—that is, to show
that he did not intend to kill Mrs. Stout. 367 F. 3d, at 607.
But the desire to contest the State’s version of events would
not necessarily entail the desire to contest the aggravated
murder charge or any of its elements. Rather, Stumpf ’s de
sire to put on evidence “relative to the underlying facts” and
“relative to his conduct” could equally have meant that
Stumpf was eager to make his mitigation case—an interpre
tation bolstered by the attorney’s and Stumpf ’s approving
answers after the presiding judge confirmed that the defense
could put on evidence “in mitigation” and in “the sentencing”
phase. While Stumpf ’s mitigation case was premised on the
argument that Stumpf had not shot Mrs. Stout, that was

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fully consistent with his plea of guilty to aggravated murder.
See supra, at 183–184.
Finally, Stumpf, like the Court of Appeals, relies on the
perception that he obtained a bad bargain by his plea—that
the State’s dropping several nonmurder charges and two of
the three capital murder specifications was a bad tradeoff
for Stumpf ’s guilty plea. But a plea’s validity may not be
collaterally attacked merely because the defendant made
what turned out, in retrospect, to be a poor deal. See
Brady, 397 U. S., at 757; Mabry v. Johnson, 467 U. S. 504, 508
(1984). Rather, the shortcomings of the deal Stumpf ob
tained cast doubt on the validity of his plea only if they show
either that he made the unfavorable plea on the constitution
ally defective advice of counsel, see Tollett v. Henderson, 411
U. S. 258, 267 (1973), or that he could not have understood
the terms of the bargain he and Ohio agreed to. Though
Stumpf did bring an independent claim asserting ineffective
assistance of counsel, that claim is not before us in this case.
And in evaluating the validity of Stumpf ’s plea, we are reluc
tant to accord much weight to his post hoc reevaluation of
the wisdom of the bargain. Stumpf pleaded guilty knowing
that the State had copious evidence against him, including
the testimony of Mr. Stout; the plea eliminated two of the
three capital specifications the State could rely on in seeking
the death penalty; and the plea allowed Stumpf to assert his
acceptance of responsibility as an argument in mitigation.
Under these circumstances, the plea may well have been a
knowing, voluntary, and intelligent reaction to a litigation
situation that was difficult, to say the least. The Court of
Appeals erred in concluding that Stumpf was uninformed
about the nature of the charge he pleaded guilty to, and we
reverse that portion of the judgment below.
B
The Court of Appeals was also wrong to hold that prosecu
torial inconsistencies between the Stumpf and Wesley cases

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required voiding Stumpf ’s guilty plea. Stumpf ’s assertions
of inconsistency relate entirely to the prosecutor’s argu
ments about which of the two men, Wesley or Stumpf, shot
Mrs. Stout. For the reasons given above, see supra, at 183–
184, the precise identity of the triggerman was immaterial
to Stumpf ’s conviction for aggravated murder. Moreover,
Stumpf has never provided an explanation of how the prose
cution’s postplea use of inconsistent arguments could have
affected the knowing, voluntary, and intelligent nature of
his plea.
The prosecutor’s use of allegedly inconsistent theories may
have a more direct effect on Stumpf ’s sentence, however, for
it is at least arguable that the sentencing panel’s conclusion
about Stumpf ’s principal role in the offense was material
to its sentencing determination. The opinion below leaves
some ambiguity as to the overlap between how the lower
court resolved Stumpf ’s due process challenge to his convic
tion, and how it resolved Stumpf ’s challenge to his sentence.
It is not clear whether the Court of Appeals would have con
cluded that Stumpf was entitled to resentencing had the
court not also considered the conviction invalid. Likewise,
the parties’ briefing to this Court, and the question on which
we granted certiorari, largely focused on the lower court’s
determination about Stumpf ’s conviction. See, e. g., Pet. for
Cert. ii (requesting review of Stumpf ’s conviction, not sen
tence); Reply Brief for Petitioner 3 (challenge to Court of
Appeals’ decision is focused on issue of conviction); Brief for
Respondent 15, n. 3 (“arguments regarding Stumpf ’s death
sentence are not before this Court”). In these circum
stances, it would be premature for this Court to resolve
the merits of Stumpf ’s sentencing claim, and we therefore
express no opinion on whether the prosecutor’s actions
amounted to a due process violation, or whether any such
violation would have been prejudicial. The Court of Ap
peals should have the opportunity to consider, in the first
instance, the question of how Eastman’s testimony and the

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Souter, J., concurring
prosecutor’s conduct in the Stumpf and Wesley cases re
late to Stumpf ’s death sentence in particular. Accordingly,
we vacate the portion of the judgment below relating to
Stumpf ’s prosecutorial inconsistency claim, and we remand
the case for further proceedings consistent with this opinion.
It is so ordered.
Justice Souter, with whom Justice Ginsburg joins,
concurring.
I join the opinion of the Court and add this word to explain
the issue that I understand we are remanding for further
consideration. As the Court notes in its opinion, although
respondent John Stumpf challenged both his conviction and
his death sentence, his attack on the sentence was not always
distinct from the issue raised about the conviction.
I understand Stumpf to claim that it violates the basic due
process standard, barring fundamentally unfair procedure, to
allow his death sentence to stand in the aftermath of three
positions taken by the State: (1) at Stumpf ’s sentencing hear
ing; (2) at the trial of Stumpf ’s codefendant, Clyde Wesley;
and (3) in response to Stumpf ’s motion to withdraw his guilty
plea in light of the State’s position at the Wesley trial. At
the hearing on Stumpf ’s sentence, the State argued that he
was the triggerman, and it urged consideration of that fact
as a reason to impose a death sentence. App. 186, 188–189.
The trial court found that Stumpf had pulled the trigger and
did sentence him to death, though it did not state that finding
Stumpf to be the shooter was dispositive in determining the
sentence. App. to Pet. for Cert. 219a. After the sentencing
proceeding was over, the State tried the codefendant, Wes
ley, and on the basis of testimony from a new witness argued
that Wesley was in fact the triggerman, App. 282, and should
be sentenced to death. The new witness was apparently un
convincing to the jury, which in any event was informed that
Stumpf had already been sentenced to death for the crime;
the jury rejected the specification that named Wesley as the

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189 Cite as: 545 U. S. 175 (2005)
Souter, J., concurring
triggerman, and it recommended a sentence of life, not death.
Stumpf then challenged his death sentence (along with his
conviction) on the basis of the prosecution’s position in the
Wesley case. In response, the State did not repudiate the
position it had taken in the codefendant’s case, or explain
that it had made a mistake there. Instead, it merely dis
missed the testimony of the witness it had vouched for at
Wesley’s trial, id., at 125, and maintained that Stumpf ’s
death sentence should stand for some or all of the reasons it
originally argued for its imposition. At the end of the day,
the State was on record as maintaining that Stumpf and
Wesley should both be executed on the ground that each was
the triggerman, when it was undisputed that only one of
them could have been.
Stumpf ’s claim as I understand it is not a challenge to the
evidentiary basis for arguing for the death penalty in either
case; nor is it a claim that the prosecution deliberately de
ceived or attempted to deceive either trial court, as in
Mooney v. Holohan, 294 U. S. 103 (1935) (per curiam); nor
does it implicate the rule that inconsistent jury verdicts may
be enforced, United States v. Powell, 469 U. S. 57 (1984);
Dunn v. United States, 284 U. S. 390 (1932). As I see it,
Stumpf ’s argument is simply that a death sentence may not
be allowed to stand when it was imposed in response to a
factual claim that the State necessarily contradicted in sub
sequently arguing for a death sentence in the case of a co
defendant. Stumpf ’s position was anticipated by Justice
Stevens’s observation 10 years ago that “serious questions
are raised when the sovereign itself takes inconsistent po
sitions in two separate criminal proceedings against two of
its citizens,” and that “[t]he heightened need for reliabil
ity in capital cases only underscores the gravity of those
questions . . . .” Jacobs v. Scott, 513 U. S. 1067, 1070 (1995)
(citations and internal quotation marks omitted). Justice
Stevens’s statement in turn echoed the more general one
expressed by Justice Sutherland in Berger v. United States,

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190 BRADSHAW v. STUMPF
Thomas, J., concurring
295 U. S. 78, 88 (1935), that the State’s interest in winning
some point in a given case is transcended by its interest
“that justice shall be done.” Ultimately, Stumpf ’s argument
appears to be that sustaining a death sentence in circum
stances like those here results in a sentencing system that
invites the death penalty “to be . . . wantonly and . . . freak
ishly imposed.” Lewis v. Jeffers, 497 U. S. 764, 774 (1990)
(quoting Gregg v. Georgia, 428 U. S. 153, 188 (1976) ( joint
opinion of Stewart, Powell, and Stevens, JJ.); internal quo
tation marks omitted).
If a due process violation is found in the State’s mainte
nance of such inconsistent positions, there will be remedial
questions. May the death sentence stand if the State de
clines to repudiate its inconsistent position in the codefend
ant’s case? Would it be sufficient simply to reexamine the
original sentence and if so, which party should have the bur
den of persuasion? If more would be required, would a de
novo sentencing hearing suffice?
Justice Thomas, with whom Justice Scalia joins,
concurring.
I join the Court’s 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 prosecution’s presentation
of inconsistent theories violated his right to due process.
Ante, at 182. With certain narrow exceptions, Teague pre
cludes 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 (plu
rality 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
case . . . whether the court is obligated to apply the Teague
rule to the defendant’s claim,” and “if the State does argue

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Thomas, J., concurring
that the defendant seeks the benefit of a new rule of constitu
tional 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 de
faulted 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.
134a–140a. Instead, the District Court raised the issue for
Stumpf sua sponte, and ordered supplemental briefing on the
point. See App. 97–98. The Court’s opinion does not pre
clude the State from advancing either of these procedural
defenses on remand in support of Stumpf ’s death sentence.
Moreover, I agree with the Court that “Stumpf has never
provided an explanation of how the prosecution’s postplea
use of inconsistent arguments could have affected the know
ing, voluntary, and intelligent nature of his plea.” Ante,
at 187. Similar reasoning applies to Stumpf ’s sentence.
Stumpf equally has never explained how the prosecution’s
use of postsentence inconsistent arguments—which were
based on evidence unavailable until after Stumpf was sen
tenced—could have affected the reliability or procedural fair
ness of his death sentence. At most, the evidence and
purportedly inconsistent theory presented at Wesley’s 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 Nation’s traditions have long
foreclosed, see Herrera v. Collins, 506 U. S. 390, 408–417
(1993); id., at 427–428 (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 op

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192 BRADSHAW v. STUMPF
Thomas, J., concurring
posing counsel will bring the conflict to the factfinder’s atten
tion. See ante, at 188 (Souter, J., concurring) (noting that
Wesley’s jury was informed that Stumpf had already been
sentenced to death for the crime).