[align=left]
299

on direct or habeas review. Caldwell v. Texas, 137 U. S. 692, 698 (1891); Brown v. New Jersey, 175 U. S. 172, 175 (1899).

The cases cited by JUSTICE THOMAs-Moore v. Dempsey, 261 U. S. 86 (1923), and Frank v. Mangum, 237 U. S. 309 (1915)-demonstrate that the absence of a full and fair hearing in the state courts was itself the relevant violation of the Constitution; it was not a prerequisite to a federal court's consideration of some other federal claim. Both cases held that a trial dominated by an angry mob was inconsistent with due process. In both, the Court recognized that the State could nevertheless afford due process if the state appellate courts provided a fair opportunity to correct the error. The state courts had provided such an opportunity in Frank; in Moore, they had not. In neither case is the "full and fair hearing" rule cited as a deferential standard of review applicable to habeas cases; the rule instead defines the constitutional claim itself, which was reviewed de novo. See Moore, supra, at 91-92.

Second, JUSTICE THOMAS quotes Justice Powell's opinion in Kuhlmann v. Wilson, 477 U. S. 436 (1986), out of context. Ante, at 285-286. Justice Powell said only that the judgment of a committing court of competent jurisdiction was accorded "absolute respect" on habeas in the 19th century, when the habeas inquiry was limited to the jurisdiction of the court. Kuhlmann, supra, at 446 (opinion of Powell, J.). Justice Powell was not expressing the erroneous view which JUSTICE THOMAS today ascribes to him, that state court judgments were entitled to complete deference before 1953.

Third, JUSTICE THOMAS errs in implying that Brown v. Allen, 344 U. S. 443 (1953), was the first case in which the Court held that the doctrine of res judicata is not strictly followed on federal habeas. Ante, at 287. In fact, the Court explicitly reached this holding for the first time in Salinger v. Loisel, 265 U. S. 224, 230 (1924). Even Salinger did not break new ground: The Salinger Court observed that such had been the rule at common law, and that the Court had




300

O'CONNOR, J., concurring in judgment

implicitly followed it in Carter v. M cClaughry, 183 U. S. 365, 378 (1902), and Ex parte Spencer, 228 U. S. 652, 658 (1913). Salinger, supra, at 230. The Court reached the same conclusion in at least two other cases between Salinger and Brown. See Waley v. Johnston, 316 U. S. 101, 105 (1942); Darr v. Burford, 339 U. S. 200, 214 (1950). Darr and Spencer, like this case, involved the initial federal habeas filings of state prisoners.

Fourth, JUSTICE THOMAS understates the certainty with which Brown v. Allen rejected a deferential standard of review of issues of law. Ante, at 287-288. The passages in which the Brown Court stated that a district court should determine whether the state adjudication had resulted in a "satisfactory conclusion," and that the federal courts had discretion to give some weight to state court determinations, ante, at 287, were passages in which the Court was discussing how federal courts should resolve questions of fact, not issues oflaw. This becomes apparent from a reading of the relevant section of Brown, 344 U. S., at 460-465, a section entitled "Right to a Plenary Hearing." When the Court then turned to the primary legal question presented-whether the Fourteenth Amendment permitted the restriction of jury service to taxpayers-the Court answered that question in the affirmative without any hint of deference to the state courts. Id., at 467-474. The proper standard of review of issues of law was also discussed in Justice Frankfurter's opinion, which a majority of the Court endorsed. After recognizing that state court factfinding need not always be repeated in federal court, Justice Frankfurter turned to the quite different question of determining the law. He wrote: "Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts, the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, socalled mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication




301

with the federal judge." Id., at 507 (emphasis added; citation omitted). Justice Frankfurter concluded: "The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right." Id., at 508.

Fifth, JUSTICE THOMAS incorrectly states that we have never considered the standard of review to apply to mixed questions of law and fact raised on federal habeas. Ante, at 289. On the contrary, we did so in the very cases cited by JUSTICE THOMAS. In Irvin v. Dowd, 366 U. S. 717 (1961), we stated quite clearly that" 'mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.' It was, therefore, the duty of the Court of Appeals to independently evaluate [the issue of jury prejudice]." Id., at 723 (quoting Brown v. Allen, supra, at 507 (opinion of Frankfurter, J.)). We then proceeded to employ precisely the same legal analysis as in cases on direct appeal. 366 U. S., at 723-728.

In Townsend v. Sain, 372 U. S. 293 (1963), we again said that "[a]lthough the district judge may, where the state court has reliably found the relevant facts, defer to the state court's findings of fact, he may not defer to its findings of law. It is the district judge's duty to apply the applicable federal law to the state court fact findings independently." Id., at 318.

In Neil v. Biggers, 409 U. S. 188 (1972), we addressed de novo the question whether the state court pretrial identification procedures were unconstitutionally suggestive by using the same standard used in cases on direct appeal: "'a very substantial likelihood of irreparable misidentification.''' Id., at 198 (quoting Simmons v. United States, 390 U. S. 377, 384 (1968)).

In Brewer v. Williams, 430 U. S. 387 (1977), we reviewed de novo a state court's finding that a defendant had waived his right to counsel. We held that "the question of waiver




302

O'CONNOR, J., concurring in judgment

was not a question of historical fact, but one which, in the words of Mr. Justice Frankfurter, requires 'application of constitutional principles to the facts as found .... '" Id., at 403 (quoting Brown v. Allen, supra, at 507 (opinion of Frankfurter, J.)). We then employed the same legal analysis used on direct review. 430 U. S., at 404.

In Cuyler v. Sullivan, 446 U. S. 335 (1980), we explicitly considered the question whether the Court of Appeals had exceeded the proper scope of review of the state court's decision. Id., at 341. We concluded that because the issue presented was not one of historical fact entitled to a presumption of correctness under 28 U.S.C. 2254(d), the Court of Appeals was correct in reconsidering the state court's "application of legal principles to the historical facts of this case." 446 U. S., at 342. Although we held that the Court of Appeals had erred in stating the proper legal principle, we remanded to have it consider the case under the same legal principles as in cases on direct review. Id., at 345-350.

In Strickland v. Washington, 466 U. S. 668 (1984), we held that "[t]he principles governing ineffectiveness claims should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial. ... [N]o special standards ought to apply to ineffectiveness claims made in habeas proceedings." Id., at 697-698. We distinguished state court determinations of mixed questions of fact and law, to which federal courts should not defer, from state court findings of historical fact, to which federal courts should defer. Id., at 698.

Finally, in Miller v. Fenton, 474 U. S. 104 (1985), we recognized that "an unbroken line of cases, coming to this Court both on direct appeal and on review of applications to lower federal courts for a writ of habeas corpus, forecloses the Court of Appeals' conclusion that the 'voluntariness' of a confession merits something less than independent federal consideration." Id., at 112.




303

To this list of cases cited by JUSTICE THOMAS, one could add the following, all of which applied a standard of de novo review. Leyra v. Denno, 347 U. S. 556, 558-561 (1954); United States ex rel. Jennings v. Ragen, 358 U. S. 276, 277 (1959); Rogers v. Richmond, 365 U. S. 534, 546 (1961); Gideon v. Wainwright, 372 U. S. 335, 339-345 (1963); Pate v. Robinson, 383 U. S. 375, 384-386 (1966); Sheppard v. Maxwell, 384 U. S. 333, 349-363 (1966); McMann v. Richardson, 397 U. S. 759, 766-774 (1970); Lego v. Twomey, 404 U. S. 477, 482-490 (1972); Barker v. Wingo, 407 U. S. 514, 522-536 (1972); Morrissey v. Brewer, 408 U. S. 471, 480-490 (1972); Gagnon v. Scarpelli, 411 U. S. 778, 781-791 (1973); Schneckloth v. Bustamonte, 412 U. S. 218, 222-249 (1973); Manson v. Brathwaite, 432 U. S. 98, 109-117 (1977); Watkins v. Sowders, 449 U. S. 341, 345-349 (1981); Jones v. Barnes, 463 U. S. 745, 750754 (1983); Berkemer v. McCarty, 468 U. S. 420, 435-442 (1984); Moran v. Burbine, 475 U. S. 412, 420-434 (1986); Kimmelman v. Morrison, 477 U. S. 365, 383-387 (1986); Maynard v. Cartwright, 486 U. S. 356, 360-365 (1988); Duckworth v. Eagan, 492 U. S. 195, 201-205 (1989). There have been many others.

Sixth, JUSTICE THOMAS misdescribes Jackson v. Virginia, 443 U. S. 307 (1979). Ante, at 290. In Jackson, the respondents proposed a deferential standard of review, very much like the one JUSTICE THOMAS discusses today, that they thought appropriate for addressing constitutional claims of insufficient evidence. 443 U. S., at 323. We expressly rejected this proposal. Ibid. Instead, we adhered to the general rule of de novo review of constitutional claims on habeas. Id., at 324.

Seventh, JUSTICE THOMAS mischaracterizes Teague v. Lane, 489 U. S. 288 (1989), and Penry v. Lynaugh, 492 U. S. 302 (1989), as "question[ing] thee] standard [of de novo review] with respect to pure legal questions." Ante, at 291. Teague did not establish a "deferential" standard of review of state court determinations of federal law. It did not es-




304

O'CONNOR, J., concurring in judgment

tablish a standard of review at all. Instead, Teague simply requires that a state conviction on federal habeas be judged according to the law in existence when the conviction became final. Penry, supra, at 314; Teague, supra, at 301. In Teague, we refused to give state prisoners the retroactive benefit of new rules of law, but we did not create any deferential standard of review with regard to old rules.

To determine what counts as a new rule, Teague requires courts to ask whether the rule a habeas petitioner seeks can be meaningfully distinguished from that established by binding precedent at the time his state court conviction became final. Cf. Mackey v. United States, 401 U. S. 667, 695 (1971) (inquiry is "to determine whether a particular decision has really announced a 'new' rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law") (Harlan, J., concurring in judgments in part and dissenting in part) (internal quotation marks omitted; emphasis added). Even though we have characterized the new rule inquiry as whether "reasonable jurists" could disagree as to whether a result is dictated by precedent, see Sawyer v. Smith, 497 U. S. 227, 234 (1990), the standard for determining when a case establishes a new rule is "objective," and the mere existence of conflicting authority does not necessarily mean a rule is new. Stringer v. Black, 503 U. S. 222, 237 (1992). If a proffered factual distinction between the case under consideration and pre-existing precedent does not change the force with which the precedent's underlying principle applies, the distinction is not meaningful, and any deviation from precedent is not reasonable.

So, while JUSTICE THOMAS says that we "defer" to state courts' determinations of federal law, the statement is misleading. Although in practice, it may seem only "a matter of phrasing" whether one calls the Teague inquiry a standard of review or not, "phrasing mirrors thought, [and] it is impor-




305

tant that the phrasing not obscure the true issue before a federal court." Brown v. Allen, 344 U. S., at 501 (opinion of Frankfurter, J.). As JUSTICE KENNEDY convincingly demonstrates, the duty of the federal court in evaluating whether a rule is "new" is not the same as deference; federal courts must make an independent evaluation of the precedent existing at the time the state conviction became final in order to determine whether the case under consideration is meaningfully distinguishable. Teague does not direct federal courts to spend less time or effort scrutinizing the existing federal law, on the ground that they can assume the state courts interpreted it properly.

Eighth, though JUSTICE THOMAS suggests otherwise, ante, at 293, de novo review is not incompatible with the maxim that federal courts should "give great weight to the considered conclusions of a coequal state judiciary," Miller v. Fenton, 474 U. S., at 112, just as they do to persuasive, wellreasoned authority from district or circuit courts in other jurisdictions. A state court opinion concerning the legal implications of precisely the same set of facts is the closest one can get to a "case on point," and is especially valuable for that reason. But this does not mean that we have held in the past that federal courts must presume the correctness of a state court's legal conclusions on habeas, or that a state court's incorrect legal determination has ever been allowed to stand because it was reasonable. We have always held that federal courts, even on habeas, have an independent obligation to say what the law is.

Finally, in his one-sentence summary of respondent's arguments, ante, at 294, JUSTICE THOMAS fails to mention that Congress has considered habeas corpus legislation during 27 of the past 37 years, and on 13 occasions has considered adopting a deferential standard of review along the lines suggested by JUSTICE THOMAS. Congress has rejected each proposal. In light of the case law and Congress' position, a move away from de novo review of mixed questions of law




306

KENNEDY, J., concurring in judgment

and fact would be a substantial change in our construction of the authority conferred by the habeas corpus statute. As JUSTICE THOMAS acknowledges, to change the standard of review would indeed be "far-reaching," ante, at 295, and we need not decide whether to do so in order to resolve this case.

JUSTICE KENNEDY, concurring in the judgment.

I do not enter the debate about the reasons that took us to the point where mixed constitutional questions are subject to de novo review in federal habeas corpus proceedings. Whatever the answer to that difficult historical inquiry, all agree that, at least prior to the Court's adoption of the retroactivity analysis of Teague v. Lane, 489 U. S. 288 (1989), see Penry v. Lynaugh, 492 U. S. 302, 313-314 (1989), the matter was settled. It seems that the real issue dividing my colleagues is whether the retroactivity analysis of Teague casts doubt upon the rule of Miller v. Fenton, 474 U. S. 104, 112 (1985). Even petitioner State of Virginia and the United States as amicus curiae, both seeking a deferential standard with respect to mixed questions, recognize that this is how the standard of review question arises. See Brief for Petitioners 11 ("The notion that a state prisoner has a right to de novo federal collateral review of his constitutional claims ... surely has not survived this Court's decisions in Teague" and its progeny); Brief for United States as Amicus Curiae 12 ("Prior to the rule established by Teague [and later cases applying Teague], this Court often treated mixed questions of law and fact as subject to independent review in federal habeas corpus").

If vindication of the principles underlying Teague did require that state-court rulings on mixed questions must be given deference in a federal habeas proceeding, then indeed it might be said that the Teague line of cases is on a collision course with the Miller v. Fenton line. And in the proper case we would have to select one at the expense of the other. But in my view neither the purpose for which Teague was




307

adopted nor the necessary means for implementing its holding creates any real conflict with the requirement of de novo review of mixed questions.

In my view, it would be a misreading of Teague to interpret it as resting on the necessity to defer to state-court determinations. Teague did not establish a deferential standard of review of state-court decisions of federal law. It established instead a principle of retroactivity. See Teague v. Lane, supra, at 310 ("[WJe now adopt Justice Harlan's view of retroactivity for cases on collateral review"). To be sure, the fact that our standard for distinguishing old rules from new ones turns on the reasonableness of a state court's interpretation of then existing precedents suggests that federal courts do in one sense defer to state-court determinations. But we should not lose sight of the purpose of the reasonableness inquiry where a Teague issue is raised: The purpose is to determine whether application of a new rule would upset a conviction that was obtained in accordance with the constitutional interpretations existing at the time of the prisoner's conviction.

As we explained earlier this Term:


"When a petitioner seeks federal habeas relief based upon a principle announced after a final judgment, Teague and our subsequent decisions interpreting it require a federal court to answer an initial question, and in some cases a second. First, it must be determined whether the decision relied upon announced a new rule. If the answer is yes and neither exception applies, the decision is not available to the petitioner. If, however, the decision did not announce a new rule, it is necessary to inquire whether granting the relief sought would create a new rule because the prior decision is applied in a novel setting, thereby extending the precedent. The interests in finality, predictability, and comity underlying our new rule jurisprudence may be undermined to an equal degree by the invocation of a rule that was not




308

KENNEDY, J., concurring in judgment


dictated by precedent as by the application of an old rule in a manner that was not dictated by precedent." Stringer v. Black, 503 U. S. 222, 227-228 (1992) (citation omitted).

The comity interest is not, however, in saying that since the question is close the state-court decision ought to be deemed correct because we are in no better position to judge. That would be the real thrust of a principle based on deference. We see that principle at work in the statutory requirement that, except in limited circumstances, the federal habeas court must presume the correctness of state-court factual findings. See 28 U.S.C. 2254(d). See also Rushen v. Spain, 464 U. S. 114, 120 (1983) (per curiam) (noting that "the state courts were in a far better position than the federal courts to answer" a factual question). Deference of this kind may be termed a comity interest, but it is not the comity interest that underlies Teague. The comity interest served by Teague is in not subjecting the States to a regime in which finality is undermined by our changing a rule once thought correct but now understood to be deficient on its own terms. It is in recognition of this principle that we ask whether the decision in question was dictated by precedent. See, e. g., Saffle v. Parks, 494 U. S. 484, 488 (1990).

Teague does bear on applications of law to fact which result in the announcement of a new rule. Whether the prisoner seeks the application of an old rule in a novel setting, see Stringer, supra, at 228, depends in large part on the nature of the rule. If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule. The rule of Jackson v. Virginia, 443 U. S. 307 (1979), is an example. By its very terms it provides a general standard which calls for some examination of the facts. The standard is whether any rational trier of fact could have found guilt beyond a reasonable doubt after a review of all




309

the evidence, so of course there will be variations from case to case. Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.

Although as a general matter "new rules will not be applied or announced" in habeas proceedings, Penry, 492 U. S., at 313, there is no requirement that we engage in the threshold Teague inquiry in a case in which it is clear that the prisoner would not be entitled to the relief he seeks even if his case were pending on direct review. See Collins v. Youngblood, 497 U. S. 37 (1990). Therefore, it is not necessary to the resolution of this case to consider the oddity that reversing respondent's conviction because of the quite factspecific determination that there was insufficient evidence would have the arguable effect of undercutting the wellestablished general principle in Virginia and elsewhere that the trier of fact may infer theft from unexplained or falsely denied possession of recently stolen goods. Whether a holding that there was insufficient evidence would constitute one of those unusual cases in which an application of Jackson would create a new rule need not be addressed.

On these premises, the existence of Teague provides added justification for retaining de novo review, not a reason to abandon it. Teague gives substantial assurance that habeas proceedings will not use a new rule to upset a state conviction that conformed to rules then existing. With this safeguard in place, recognizing the importance of finality, de novo review can be exercised within its proper sphere.

For the foregoing reasons, I would not interpret Teague as calling into question the settled principle that mixed questions are subject to plenary review on federal habeas corpus. And, for the reasons I have mentioned, I do not think it necessary to consider whether the respondent brings one of those unusual Jackson claims which is Teague-barred.




310

SOUTER, J., concurring in judgment

I agree that the evidence in this case was sufficient to convince a rational factfinder of guilt beyond a reasonable doubt; and I concur in the judgment of the Court.

JUSTICE SOUTER, concurring in the judgment.

While I could not disagree with the majority that sufficient evidence supported West's conviction, see, e. g., ante, at 295297, I do not think the Court should reach that issue. We have often said that when the principles first developed in Teague v. Lane, 489 U. S. 288 (1989), pose a threshold question on federal habeas review, it is only after an answer favorable to the prisoner that a court should address the merits. See, e. g., Collins v. Youngblood, 497 U. S. 37, 40-41 (1990); Penry v. Lynaugh, 492 U. S. 302, 313, 329 (1989); Teague, supra, at 300 (plurality opinion). This habeas case begins with a Teague question, and its answer does not favor West. I would go no further.1

I

Under cases in the line of Teague v. Lane, supra, with two narrow exceptions not here relevant, federal courts conducting collateral review may not announce or apply a "new" rule for a state prisoner's benefit, Butler v. McKellar, 494 U. S. 407, 412 (1990); Teague, supra, at 310 (plurality opinion), a new rule being one that was "not 'dictated by precedent existing at the time the defendant's conviction became final,'" Sawyer v. Smith, 497 U. S. 227, 234 (1990) (quoting Teague, supra, at 301 (plurality opinion)) (emphasis in original). Put differently, the new-rule enquiry asks "whether a state court considering [the prisoner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [the prisoner] seeks was required by the Constitution." Saffle v. Parks, 494 U. S. 484, 488

1 Because my analysis ends the case for me without reaching historical questions, I do not take a position in the disagreement between JUSTICE THOMAS and JUSTICE O'CONNOR.




311

(1990). Or, put differently yet again, if "reasonable jurists [might have] disagree[d]" about the steps the law would take next, its later development will not be grounds for relief. Sawyer v. Smith, supra, at 234; see also Butler, supra, at 415 ("susceptible to debate among reasonable minds").

The Teague line of cases reflects recognition of important "interests of comity and finality." Teague, supra, at 308 (plurality opinion). One purpose of federal collateral review of judgments rendered by state courts in criminal cases is to create an incentive for state courts to '" "conduct their proceedings in a manner consistent with established constitutional standards," ,,, Butler, supra, at 413 (quoting Teague, supra, at 306 (plurality opinion)), and "[t]he 'new rule' principle" recognizes that purpose by "validat[ing] reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler, supra, at 414 (citing United States

The crux of the analysis when Teague is invoked, then, is identification of the rule on which the claim for habeas relief depends. To survive Teague, it must be "old" enough to have predated the finality of the prisoner's conviction, and specific enough to dictate the rule on which the conviction may be held to be unlawful. A rule old enough for Teague may of course be too general, and while identifying the required age of the rule of relief is a simple matter of comparing dates, passing on its requisite specificity calls for analytical care.

The proper response to a prisoner's invocation of a rule at too high a level of generality is well illustrated by our cases. In Butler, supra, for example, the prisoner relied on the rule of Arizona v. Roberson, 486 U. S. 675 (1988), which we announced after Butler's conviction had become final. We held in Roberson that the Fifth Amendment forbids police interrogation about a crime after the suspect requests counsel, even if his request occurs in the course of investigating a




312

SOUTER, J., concurring in judgment

different, unrelated crime. Id., at 682. Butler argued that he could invoke Roberson's rule because it was "merely an application of Edwards [v. Arizona, 451 U. S. 477 (1981)]," in which we held that, if a person is in custody on suspicion of a crime, the police must stop questioning him about that crime once he invokes his right to counsel, id., at 484-485, "to a slightly different set of facts." 494 U. S., at 414. We rejected this argument, saying that it "would not have been an illogical or even a grudging application of Edwards to decide that it did not extend to the facts of Roberson." Id., at 415.

Likewise, in Sawyer, supra, the petitioner sought the benefit of Caldwell v. Mississippi, 472 U. S. 320 (1985), which had been announced after Sawyer's conviction was final. We held in Caldwell that the Eighth Amendment prohibits resting "a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id., at 328-329. Sawyer argued that he was entitled to the benefit of Caldwell's rule as having been "dictated by the principle of reliability in capital sentencing," Sawyer, supra, at 236, which, he said, had been established by cases announced before his conviction became final, Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978), among them. We rejected the argument, saying that


"the [Teague] test would be meaningless if applied at this level of generality. Cf. Anderson v. Creighton, 483 U. S. 635, 639 (1987) ('[I]f the test of "clearly established law" were to be applied at this level of generality, ... [p]laintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights')." 497 U. S., at 236 (internal quotation brackets in original).




313

Although the principle that Sawyer invoked certainly "lent general support to the conclusion reached in Caldwell," ibid., we said that" 'it does not follow that [Eddings and Lockett] compel the rule that [petitioner] seeks,'" ibid. (second set of brackets in original) (quoting Saffle, supra, at 491).

In sum, our cases have recognized that "[t]he interests in finality, predictability, and comity underlying our new rule jurisprudence may be undermined to an equal degree by the invocation of a rule that was not dictated by precedent as by the application of an old rule in a manner that was not dictated by precedent." Stringer v. Black, 503 U. S. 222, 228 (1992). This does not mean, of course, that a habeas petitioner must be able to point to an old case decided on facts identical to the facts of his own. But it does mean that, in light of authority extant when his conviction became final, its unlawfulness must be apparent. Cf. Anderson v. Creighton, 483 U. S. 635, 640 (1987).

II

In this case, the Court of Appeals overruled the Commonwealth's Teague objection by saying that West merely claimed that the evidence had been insufficient to support his conviction, so that the result he sought was dictated by Jackson v. Virginia, 443 U. S. 307 (1979), a case announced before petitioner's conviction became final for Teague purposes in 1980. 931 F. 2d 262, 265-267 (CA4 1991). Having thus surmounted Teague's time hurdle, the court went on to say that "the evidence here consisted entirely of ... the ... facts ... that about one-third in value of goods stolen between December 13 and December 26, 1978, were found on January 10, 1979, in the exclusive possession of ... West, coupled with [West's] own testimony explaining his possession as having come about by purchases in the interval." 931 F. 2d, at 268. Applied in this context, the court held, the unadorned Jackson norm translated into the more specific rule announced in Cosby v. Jones, 682 F. 2d 1373 (CAll




314

SOUTER, J., concurring in judgment

1982), which held that the evidence of unexplained or unconvincingly explained possession of recently stolen goods was not, without more, sufficient to prove theft, but must be weighed more exactly after asking five questions: (1) Was "the possession ... recent, relative to the crime"? (2) Was a large majority of the stolen items found in the defendant's possession? (3) Did the defendant attempt to conceal the stolen items? (4) Was the defendant's explanation, "even if discredited by the jury, ... 'so implausible or demonstrably false as to give rise to positive evidence in favor of the government'''? and (5) Was there corroborating evidence supporting the conviction? 931 F. 2d, at 268 (quoting Cosby, supra, at 1383, n. 19).

Applying Cosby to the facts of this case, the Court of Appeals found that all five factors were either neutral or advantageous to West: (1) Two to four weeks elapsed between the theft and the possession described in testimony,2 a time period consistent with West's explanation that he had bought the goods in the interval; (2) measured by value, a mere third of Cardova's belongings surfaced in West's possession; (3) the stolen items were found in plain view in West's home; (4) while "there was no third person testimony corroborating [West's] explanation and on cross-examination West exhibited confusion about the exact circumstances of some of the purchases[,] ... he maintained his general explanation that he had purchased all the items at flea markets, and there was nothing inherently implausible about this explanation"; and, finally, (5) there was no evidence corroborating theft by West. 931 F. 2d, at 269-270. The Court of Appeals concluded that "the evidence here, assessed in its entirety and in the light most favorable to the prosecution, was not sufficient to persuade any rational trier of fact of [West's] guilt .... " Id., at 270.

2 The Court of Appeals overlooked that West testified that he came into possession of Cardova's goods around January 1. See App. 25-27. Thus, a more accurate estimate of the time lapse would be one to three weeks.




315

It is clear that the Court of Appeals misapplied the commands of Teague by defining the rule from which West sought to benefit at an unduly elevated level of generality. There can, of course, be no doubt that, in reviewing West's conviction, the Supreme Court of Virginia was not entitled to disregard Jackson, which antedated the finality of West's conviction. But from Jackson's rule, that sufficiency depends on whether a rational trier, viewing the evidence most favorably to the prosecution, could find all elements beyond a reasonable doubt, it does not follow that the insufficiency of the evidence to support West's conviction was apparent. Virginia courts have long recognized a rule that evidence of unexplained or falsely explained possession of recently stolen goods is sufficient to sustain a finding that the possessor took the goods. See, e. g., Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S. E. 2d 352, 353 (1980); Henderson v. Commonwealth, 215 Va. 811, 812-813, 213 S. E. 2d 782, 783-784 (1975); Bazemore v. Commonwealth, 210 Va. 351, 352, 170 S. E. 2d 774,776 (1969); Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S. E. 2d 443, 444 (1987). In this case, we are concerned only with the Virginia rule's second prong. West took the stand and gave an explanation that the jury rejected, thereby implying a finding that the explanation was false.3 Thus, the portion of the state rule under attack here is that falsely explained recent possession suffices to identify the possessor as the thief. The rule has the virtue of much common sense. It is utterly reasonable to conclude that a possessor of recently stolen goods who lies about where he got them is the thief who took them, and it should come as no surprise that the rule had been accepted as good law against the backdrop of a general state sufficiency standard no less stringent than that of Jackson. See, e. g., Bishop v. Commonwealth, 227 Va. 164, 169, 313 S. E. 2d 390, 393 (1984);

3 The jury's finding must of course be accepted under the Jackson v. Virginia, 443 U. S. 307 (1979), requirement to judge sufficiency by viewing the evidence "in the light most favorable to the prosecution." Id., at 319.




316

SOUTER, J., concurring in judgment

Inge v. Commonwealth, 217 Va. 360, 366, 228 S. E. 2d 563, 568 (1976). It is simply insupportable, then, to say that reasonable jurists could not have considered this rule compatible with the Jackson standard. There can be no doubt, therefore, that in the federal courts West sought the benefit of a "new rule," and that his claim was barred by Teague.
On this ground, I respectfully concur in the judgment of the Court.
[/align]