On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Court Below: 341 F. 3d 1082
Respondent was convicted of first-degree murder and sentenced to death under Arizona's capital sentencing scheme then in effect, which authorized the trial judge, rather than the jury, to determine the presence of aggravating circumstances that make the defendant eligible for the death sentence. The State Supreme Court affirmed on direct review. While respondent's subsequent federal habeas case was pending in the Ninth Circuit, this Court decided that Apprendi v. New Jersey,
The opinion of the court was delivered by: Justice Scalia
In this case, we decide whether Ring v. Arizona, 536 U. S. 584 (2002), applies retroactively to cases already final on direct review.
In April 1981, Finance America employee Brenna Bailey disappeared while on a house call to discuss an outstanding debt with respondent Warren Summerlin's wife. That evening, an anonymous woman (later identified as respondent's mother-in-law) called the police and accused respondent of murdering Bailey. Bailey's partially nude body, her skull crushed, was found the next morning in the trunk of her car, wrapped in a bedspread from respondent's home. Police arrested respondent and later overheard him make incriminating remarks to his wife.
Respondent was convicted of first-degree murder and sexual assault. Arizona's capital sentencing provisions in effect at the time authorized the death penalty if one of several enumerated aggravating factors was present. See Ariz. Rev. Stat. Ann. §§13-703(E), (F) (West 1978), as amended by Act of May 1, 1979 Ariz. Sess. Laws ch. 144. Whether those aggravating factors existed, however, was determined by the trial judge rather than by a jury. §13-703(B). In this case the judge, after a hearing, found two aggravating factors: a prior felony conviction involving use or threatened use of violence, §13-703(F)(2), and commission of the offense in an especially heinous, cruel, or depraved manner, §13-703(F)(6). Finding no mitigating factors, the judge imposed the death sentence. The Arizona Supreme Court affirmed on direct review. State v. Summerlin, 138 Ariz. 426, 675 P. 2d 686 (1983).
Protracted state and federal habeas proceedings followed. While respondent's case was pending in the Ninth Circuit, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), and Ring v. Arizona, supra. In Apprendi, we interpreted the constitutional due-process and jury-trial guarantees to require that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U. S., at 490. In Ring, we applied this principle to a death sentence imposed under the Arizona sentencing scheme at issue here. We concluded that, because Arizona law authorized the death penalty only if an aggravating factor was present, Apprendi required the existence of such a factor to be proved to a jury rather than to a judge. 536 U. S., at 603-609.*fn1 We specifically overruled our earlier decision in Walton v. Arizona, 497 U. S. 639 (1990), which had upheld an Arizona death sentence against a similar challenge. 536 U. S., at 609.
The Ninth Circuit, relying on Ring, invalidated respondent's death sentence. Summerlin v. Stewart, 341 F. 3d 1082, 1121 (2003) (en banc).*fn2 It rejected the argument that Ring did not apply because respondent's conviction and sentence had become final on direct review before Ring was decided. We granted certiorari. 540 U. S. 1045 (2003).*fn3
When a decision of this Court results in a "new rule," that rule applies to all criminal cases still pending on direct review. Griffith v. Kentucky, 479 U. S. 314, 328 (1987). As to convictions that are already final, however, the rule applies only in limited circumstances. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, see Bousley v. United States, 523 U. S. 614, 620-621 (1998), as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish, see Saffle v. Parks, 494 U. S. 484, 494-495 (1990); Teague v. Lane, 489 U. S. 288, 311 (1989) (plurality opinion).*fn4 Such rules apply retroactively because they "necessarily carry a significant risk that a defendant stands convicted of `an act that the law does not make criminal' " or faces a punishment that the law cannot impose upon him. Bousley, supra, at 620 (quoting Davis v. United States, 417 U. S. 333, 346 (1974)).
New rules of procedure, on the other hand, generally do not apply retroactively. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Because of this more speculative connection to innocence, we give retroactive effect to only a small set of " `watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle, supra, at 495 (quoting Teague, 489 U. S., at 311). That a new procedural rule is "fundamental" in some abstract sense is not enough; the rule must be one "without which the likelihood of an accurate conviction is seriously diminished." Id., at 313 (emphasis added). This class of rules is extremely narrow, and "it is unlikely that any ... `ha[s] yet to emerge.' " Tyler v. Cain, 533 U. S. 656, 667, n. 7 (2001) (quoting Sawyer v. Smith, 497 U. S. 227, 243 (1990)).
The Ninth Circuit agreed with the State that Ring announced a new rule. 341 F. 3d, at 1108-1109. It nevertheless applied the rule retroactively to respondent's case, relying on two alternative theories: first, that it was substantive rather than procedural; and second, that it was a "watershed" ...