Richard Glossip—a convicted murderer twice sentenced to death by Oklahoma juries—challenges the denial of his ffth Page Proof Pending Publication application for state post-conviction relief.
Although Glossip won the support of Oklahoma's new attorney general, he failed to persuade either body with authority to grant him relief: The Oklahoma Court of Criminal Appeals (OCCA) denied Glossip's application as both procedurally defcient and nonmeritorious, and Oklahoma's Pardon and Parole Board denied clemency. Because this Court lacks the power to override these denials, that should have marked the end of the road for Glossip. Instead, the Court stretches the law at every turn to rule in his favor. At the threshold, it concocts federal jurisdiction by misreading the decision below. On the merits, it fnds a due process violation based on patently immaterial testimony about a witness's medical condition. And, for the remedy, it orders a new trial in violation of black-letter law on this Court's power to review state- court judgments. I respectfully dissent.
I
A
This case arises from the 1997 murder of Barry Van Treese, the owner of an Oklahoma City motel. Beginning in 1995, Glossip began working for Van Treese as the motel's manager. 4 Tr. 182–183 (May 14, 2004). In that capacity, Glossip unoffcially hired 19-year-old Justin Sneed to be the motel's handyman. Glossip did not pay Sneed; instead, he let him live at the motel free of charge and occasionally bought him food. Id., at 43–44; 5 Tr. 67–70 (May 17, 2004); 2 App. 644. In late 1996, Van Treese learned of discrepancies in Glossip's accounting suggesting that Glossip had been allowing guests to stay at the motel off the books and pocketing the money for himself. 4 Tr. 63, 68–71 (May 14, 2004); 7 Tr. 35, 39–40, 45–49 (May 19, 2004); 11 Tr. 172–173 (May 25, 2004). During a visit to the motel on January 6, 1997, Van Treese confronted Glossip about this issue, and, having discovered unregistered guests staying at the Page Proof Pending Publication motel, he threatened to report Glossip to the police unless Glossip produced receipts for their rooms. 8 Tr. 82 (May 20, 2004).
Hours later, after Van Treese had gone to bed, Sneed entered Van Treese's motel room and repeatedly beat him over the head with a baseball bat. 2 App. 662–664; 11 Tr. 55 (May 25, 2004). Sneed left when he thought that he had killed Van Treese, although the State's forensic pathologist later determined that Van Treese had initially survived the attack, and died several hours later after slowly bleeding out. Id., at 55–57, 61; App. to Response to Petitioner's Succ. Application for Post-Conviction Relief in No. PCD–2022–819 (OCCA), Tr. of Glossip Police Interview 10 (Jan. 9, 1997). Following his arrest, Sneed explained to police that Glossip had urged him to kill Van Treese. 2 App. 645, 660. According to Sneed, Glossip told him that they would both be evicted if Glossip lost his job, and Glossip had promised to pay him $10,000 for carrying out the murder. 12 Tr. 95–96, 98 (May 26, 2004).
Shortly after the attack, Sneed went to Glossip's motel room and informed him that he had killed Van Treese. Tr.
of Glossip Police Interview 10 (Jan. 9, 1997). Glossip began directing a coverup. On Sneed's account, Glossip frst told Sneed to clean up glass shards from a window that Sneed had broken during the attack. 12 Tr. 122 (May 26, 2004).
Glossip also sent Sneed to retrieve about $4,000 in cash from Van Treese's car, and then to abandon the car in a nearby credit union parking lot. Id., at 124, 129. When Sneed returned, the two divided the cash. Id., at 128–129. They then entered Van Treese's room, whereupon Glossip directed Sneed to tape a shower curtain over the broken window and run the air conditioning at full blast to eliminate any odor. Id., at 130, 132. Glossip then dispatched Sneed to buy plexiglass, which the pair installed over the broken window on the morning of January 7. Tr. of Glossip Police Interview Page Proof Pending Publication Page Proof Pending Publication 14–15 (Jan. 9, 1997); 4 Tr. 163–165 (May 14, 2004); 13 Tr. 126 (May 27, 2004).1 Glossip took additional steps to cover up the murder. He told multiple witnesses that the window in Van Treese's room was broken because two drunks had stayed there the night before and smashed it in a brawl. 5 Tr. 85 (May 17, 2004); 7 Tr. 64 (May 19, 2004); 9 Tr. 46, 206 (May 21, 2004); 11 Tr. 188–189 (May 25, 2004). He told the housekeeper that she did not need to clean the downstairs rooms—including Van Treese's room. 8 Tr. 122–123 (May 20, 2004). Instead, as Glossip explained to another employee and a motel resident, he and Sneed would cover those rooms. 7 Tr. 64 (May 19, 2004); 9 Tr. 49 (May 21, 2004). Glossip had never taken such steps before. 8 Tr. 122–123 (May 20, 2004). He also told various witnesses that he had seen Van Treese alive and 1Despite its consistent theme that Sneed's testimony is too implausible to sustain Glossip's conviction, the majority feels the need to bolster its account by fnding “inconsisten[cies]” in his testimony that are not genuine. Ante, at 234, n. 1. There is no contradiction in Sneed's claims that he committed the murder as part of a robbery and that he did so to avoid being “ `evicted if Glossip lost his job.' ” Ibid. At both of Glossip's trials, Sneed consistently testifed that Glossip proposed taking the cash Van Treese had with him and that Glossip told him that they would get evicted if he did not kill Van Treese. 12 Tr. 95–96, 98, 124 (May 26, 2004); 6 Tr. 89–90, 95–96 (June 8, 1998). Contemporaneous evidence supports both motivations. In his confession to police, Sneed stated that Glossip had proposed killing Van Treese and taking the cash that Van Treese had with him. 2 App. 675. And, two days after the murder, Glossip told police that Sneed had committed the murder in part because “[h]e thought Barry [Van Treese] was going to throw him out in the street.” Tr. of Glossip Police Interview 13 (Jan. 9, 1997). Nor did Sneed ever claim that “he did not know why Glossip wanted him to kill Van Treese.” Ante, at 234, n. 1. He testifed only that he did not know “why Mr. Glossip wanted to kill Mr. Van Treese on this particular night,” because “[e]very time that Mr. Van Treese showed up, [Glossip] was wanting me to kill him.” 6 Tr. 89 (June 8, 1998) (emphasis added). As noted, Sneed clearly testifed at the same trial that Glossip wanted Sneed to kill Van Treese so that they would not be evicted. Id., at 90.
Page Proof Pending Publication well around 7 o'clock that morning. 4 Tr. 99 (May 14, 2004); 7 Tr. 62–63 (May 19, 2004); 9 Tr. 194 (May 21, 2004); 11 Tr. 126–127, 182–183 (May 25, 2004).
That afternoon, the credit union called the motel to report that Van Treese's car had been abandoned in its parking lot. 7 Tr. 70 (May 19, 2004). At that point, it became clear to the motel's staff that Van Treese was missing. Id., at 72–74. Shortly thereafter, Glossip returned to the motel from a shopping trip, during which he had made several large purchases, including an engagement ring for his girlfriend. Id., at 74; 14 Tr. 41 (May 28, 2004). He then purported to search the rooms and surrounding area for Van Treese. 5 Tr. 97 (May 17, 2004); 9 Tr. 192–193 (May 21, 2004); 11 Tr. 185–186, 190 (May 25, 2004). He even assured Van Treese's wife over the phone that everything was fne and that he had seen Van Treese that morning. 4 Tr. 99– 100 (May 14, 2004).
Glossip later repeated to a local police offcer the story that two drunks had broken the window and that he had seen Van Treese that morning. 9 Tr. 194, 206–207 (May 21, 2004). Unpersuaded, the offcer checked the room with the broken window and discovered Van Treese's body. Id., at 220, 224– 225; 11 Tr. 191, 194 (May 25, 2004). Glossip immediately told the offcer that he suspected that Sneed had something to do with the murder, explaining that he had heard glass breaking and that Sneed had banged on his door, but he did not claim to know anything more. 9 Tr. 233 (May 21, 2004).
Homicide detectives interviewed Glossip later that night. Tr. of Glossip Police Interview 1, 10–11 (Jan. 8, 1997). He denied knowing that Van Treese had been murdered before the body was discovered. Id., at 70, 86. And, he vacillated between doubting that Sneed was involved and asserting that he likely was. Id., at 27–28, 69–70.
On the morning of January 8, Glossip began to sell all his possessions, telling multiple witnesses that he would like to leave town. 8 Tr. 88 (May 20, 2004); 11 Tr. 199 (May 25, 2004). On January 9, police picked up Glossip after he failed to appear for a meeting with homicide detectives. 12 Tr. 7 (May 26, 2004). He had $1,757 in cash on his person and no explanation for how he—living paycheck to paycheck and having made only $490 from selling his possessions the previous day—had so much cash. Id., at 12–13; 14 Tr. 43–44 (May 28, 2004); 15 Tr. 17, 93 (June 1, 2004).
Glossip sat for a second interview with homicide detectives later that day. Tr. of Glossip Police Interview 1 (Jan. 9, 1997). This time, although continuing to deny that he had ordered Sneed to kill Van Treese, Glossip admitted that Sneed had told him about the murder just after committing it, and that he had instructed Sneed to clean up the glass and repair the window. Id., at 13–14, 36. Glossip also admitted that Van Treese “was upset because the motel wasn't doing as well as it could.” Id., at 32. When asked why he hid the murder, Glossip denied doing so to protect Sneed. He said he covered up the murder instead to protect himself, because he “was involved in it” and risked losing his girlfriend otherwise. Id., at 29–30.
During this interview, Glossip also tried to minimize his involvement in the crime by insisting that he had not gone inside Van Treese's hotel room after the attack. Id., at 18; see also ante, at 232 (emphasizing this denial). At trial, however, a motel resident testifed that, on the morning of January 7, Glossip had said that he and Sneed had been “in the room” after the window was broken. 9 Tr. 120 (May 21, 2004).
Police arrested Sneed fve days later and charged him with capital murder. 2 App. 644–645. He had $1,680 in cash in his possession. 14 Tr. 12–18 (May 28, 2004). At frst, Sneed denied involvement, claiming that his brother and Glossip had once discussed the idea but that it never went beyond talk. 2 App. 655–657. Later in the interview, however, Sneed confessed to murdering Van Treese at Glossip's instigation. Id., at 660, 664.
Page Proof Pending Publication
B
Glossip was convicted and sentenced to death in 1998, but the OCCA ordered a retrial based on ineffective assistance of counsel. 2001 OK CR 21, 29 P. 3d 597.
At his second trial in 2004, a jury convicted Glossip again, and the judge again sentenced him to death. Sneed testifed against Glossip during the guilt phase, as he had at the frst trial. While Sneed was providing background information about himself at the outset of this testimony, the State's lead prosecutor, Connie Smothermon, asked him whether he had received any “prescription medication” after being arrested. 12 Tr. 63–64 (May 26, 2004). Sneed responded that he had briefy been prescribed “Lithium for some reason, I don't know why. I never seen no psychiatrist or anything.” Id., at 64. The matter did not come up again during the trial. It would not have been challenging for the parties to deduce the reason for Sneed's lithium prescription. It is undisputed that lithium's sole medical purpose, both in 1997 and today, is to treat bipolar disorder and other mental health disorders. See ante, at 247. Were there any doubt about Sneed's condition, records long available to both sides resolve it. In 1997, Sneed underwent a pretrial competency evaluation with forensic psychologist Dr. Edith King. Dr. King's report strongly suggested that although Sneed himself may have been in denial, he was taking lithium to treat bipolar disorder or a similar condition. During his evaluation, Sneed asserted that he “d[id] not think he ha[d] any serious mental problems.” 2 App. 701. And, he reported he was given the lithium, apparently by mistake, “after his tooth was pulled.” Id., at 700. Dr. King felt otherwise. Concluding that Sneed qualifed as a “mentally ill person or a person requiring treatment,” ibid., she determined that he likely had “an atypical mood swing disorder in his past characterized by `ups and downs' including anger outburst.” Id., Page Proof Pending Publication at 702. “His present medication [i.e., the lithium] is probably helping him control his moods.” Ibid. The defense was well aware of this report before Glossip's second trial. In fact, on direct appeal of his frst conviction, Glossip's appellate counsel had faulted his trial counsel for not using Dr. King's report to show the jury that Sneed was taking lithium to control his anger. 1 id., at 18. Nevertheless, after the OCCA vacated his frst conviction, Glossip declined to seek further pretrial discovery on the issue or raise it during his second trial.
After his second conviction and sentence, Glossip ignored the lithium issue on direct appeal, instead raising a general suffciency-of-the-evidence challenge. The OCCA unanimously rejected that challenge, fnding that there was suffcient evidence to convict and that the State had satisfed an additional state-law requirement for corroborative evidence where a conviction rests on accomplice testimony. 2007 OK CR 12, ¶¶47–53, 157 P. 3d 143, 153–154. Two judges dissented on different grounds but “agree[d] with the majority that the State presented a strong circumstantial case against Glossip.” Id., at 175 (Chapel, J.); see also ibid. (A. Johnson, J.).
Glossip has spent the past two decades challenging his conviction and sentence through direct appeal, state and federal collateral proceedings, and civil litigation under Rev. Stat. § 1979, 42 U. S. C. § 1983. Throughout that time, no court has “determined error in [his] trial proceeding” or found that “there [has] been a showing of actual innocence.” 2023 OK CR 5, ¶2, 529 P. 3d 218, 229 (Lumpkin, J., specially concurring). And, for almost that entire duration, the Oklahoma attorney general has steadfastly defended the verdict and sentence, insisting that the evidence the State presented in 1998 and 2004 has never “been credibly rebutted.” 3 App.
769.
Page Proof Pending Publication Page Proof Pending Publication In 2022, as Glossip's execution date approached, a group of Oklahoma legislators opposed to his execution commissioned the law frm Reed Smith LLP to conduct an independent investigation of his case. The frm, which is publicly committed to “fghting the death penalty,” id., at 709, n. 3 (alteration and internal quotation marks omitted), issued a fnal report expressing “grave doubt as to the integrity of Glossip's murder conviction and death sentence,” Independent Investigation of State v. Richard E. Glossip 6 (June 7, 2022) (Reed Smith Report). The attorney general vigorously disagreed. In subsequent post-conviction flings, the State asserted that the report was “built on assumptions, half-truths, and (in some cases) outright falsehoods,” 3 App. 769, and criticized its fndings at length, see id., at 754–769.
In response to the Reed Smith Report, the attorney general's offce released all its fles from the case to Glossip, except for one box of attorney work product. Based on this information, Glossip fled a fourth motion for post-conviction relief in the OCCA, raising two overarching claims. The frst claim was that the State violated Brady v. Maryland, 373 U. S. 83 (1963), by withholding evidence that Sneed considered recanting his original testimony before the second trial. The second claim was that Smothermon, the lead prosecutor, committed misconduct and violated the rule of sequestration (which prohibits witnesses from hearing other witnesses' testimony) during trial. After the State's forensic pathologist testifed that there was evidence Sneed used a knife in addition to the bat during the murder, Smothermon sent a memorandum to Sneed's attorney highlighting ways in which this testimony was hard to square with some of Sneed's earlier statements. Glossip thus claimed Smothermon violated the rule of sequestration by conveying witness statements for the purpose of coaching Sneed into altering his testimony to ft the forensic evidence. Attorney General John O'Connor opposed the application, urging the OCCA not to be cowed Page Proof Pending Publication by the ongoing “public relations campaign” to “falsely” present Glossip as “innocent.” 3 App. 717.
The OCCA unanimously denied the application. Under Oklahoma's Post-Conviction Procedure Act (PCPA), Glossip's post-conviction application could not proceed unless he could show (1) that the “factual basis for the claim” was previously unavailable and (2) that, but for the alleged error, no reasonable jury would have convicted him or sentenced him to death. Okla. Stat., Tit. 22, § 1089(D)(8)(b) (2024). The OCCA held that both claims failed the frst requirement because they were not based on new information. It also held that Glossip's claims failed on the merits.
As to the recantation claim, the OCCA held that Glossip's frst claim was procedurally barred because the defense knew even before the 2004 trial that Sneed was reluctant to testify again. 3 App. 777. In fact, one of Glossip's attorneys had even visited Sneed before trial in an effort to persuade him not to testify. Ibid. On the merits, there was “no evidence that Sneed had any desire to recant or change his testimony.” Id., at 776. Sneed had even told Reed Smith that “ `recant[ing]' ” was “ `impossible because I told the truth.' ” Id., at 724. Sneed was reluctant to testify because he wanted to obtain a better plea deal or to avoid the disruption to his life that testifying would cause. Id., at 776.2 2The majority points to a letter from Sneed to his attorney in which Sneed raised the prospect of “ ` “recanting” ' ” his trial testimony. Ante, at 238 (quoting 3 App. 815). But, in two subsequent interviews with Reed Smith attorneys, Sneed made clear that, although he wanted to avoid testifying again if possible, he continued to stand by the truth of his earlier testimony: “[REED SMITH ATTORNEY]: Yeah. Well, I think the bottom line here, the most important things that we needed to clarify was like when you're talking about recanting, you're not talking about changing your story about what happened. Have you ever indicated to anybody that you ever wanted to change your story about what happened? “JUSTIN SNEED: No, sir. I have not ever indicated that I wanted to change the truth of him applying pressure to me.” App. to Response to Turning to the sequestration claim, the OCCA pointed out that Smothermon had acknowledged at trial that she had spoken with Sneed's counsel, so the claim likewise lacked a new factual basis. Id., at 780; see 12 Tr. 107–108 (May 26, 2004). On the merits, the court held that Oklahoma's sequestration statute does not prohibit counsel from discussing with a witness other witnesses' testimony. 3 App. 781.
Federal courts have similarly interpreted the federal sequestration rule to permit “witnesses . . . to discuss the case” with “counsel for either side.” 2A C. Wright & P. Henning, Federal Practice and Procedure § 416, p. 195, and n. 29 (4th ed. 2009) (collecting cases). And, nothing in Smothermon's memorandum indicates she was encouraging Sneed to lie. 3 App. 781–782.
In January 2023, Gentner Drummond became Oklahoma's attorney general. During his frst month in offce, Drummond released the fnal box of evidence (Box 8) to Glossip. He also appointed Rex Duncan, a personal friend and campaign donor, as independent counsel to reexamine the legitimacy of Glossip's conviction.
Among the materials released in Box 8 were handwritten notes taken by Smothermon and her co-counsel Gary Ackley during a 2003 meeting between them, Sneed, and Sneed's attorney.
Petitioner's Succ. Application for Post-Conviction Relief in No. PCD– 2022–819 (OCCA), Tr. of Sneed Reed Smith Interview 46–47 (Aug. 15, 2022).
See also id., Tr. of Sneed Reed Smith Interview 24 (Sept. 7, 2022) (“There isn't any way of really making up some [new] storyline that isn't going to cover all the evidence that is already there . . . ”). Sneed has never on any occasion indicated that his testimony that Glossip directed him to kill Van Treese was false, see 3 App. 724–725, and the majority cites no such occasion. The best explanation for Sneed's letter, and the one that the OCCA credited as factual, is thus that Sneed, an eighth-grade dropout, used the phrase “recanting my testimony” imprecisely to mean “refuse to testify.” Id., at 725, and n. 13, 776.
Page Proof Pending Publication Glossip's counsel quickly seized on Smothermon's notes.
In the top left corner of the notes, Smothermon had written “on Lithium?” and “Dr Trumpet?” See Figure 1, infra.
According to Glossip's counsel, these phrases meant that Sneed had admitted during the meeting that he had been prescribed lithium by Dr. Lawrence Trombka, the psychiatrist at the Oklahoma County Jail.
Page Proof Pending Publication Smothermon and Ackley disagree with this interpretation.
They assert before this Court that, during the meeting, Sneed recounted two interviews that he previously had with members of Glossip's defense team. In context, Smother- mon's notes simply record that Sneed told her that Glossip's defense team had asked him about his use of lithium and about “Dr Trumpet.” The prosecutors claim that this fact is apparent from the other notes on the page and from Ackley's notes, both of which refer to details of these prior interviews. Ackley's notes also highlight the phrase “ `tooth pulled.' ” 3 App. 940. The prosecutors' interpretation of their own notes thus suggests that Sneed recounted that he had responded to questions about lithium and Dr. Trombka Figure 1. Smothermon's handwritten notes. See 3 App. 927. with his earlier story that he was prescribed lithium in error after having his tooth pulled. This interpretation is explained at great length by the Van Treese family's brief. See Brief for Victim Family Members as Amici Curiae 7–22.3 And, as of yet, no one—including the par3According to Smothermon, her notes refect two visits (“2X”) by defense representatives—with notes about the two visits separated by a horizontal line. According to the notes above the line, Sneed's frst visitors were “women,” one of whom was an investigator (“invest.”) who may have been heavy set (“heavy set?”). These visitors may have been involved in Glossip's earlier direct “appeal.” These women asked Sneed whether he was “on Lithium?” and about a “Dr Trumpet?” The notes also document a discussion of a “waiver for records,” “IQ test,” and “GED. VoTech.” Similarly, Ackley's notes record that the “W[itness, i.e., Sneed,] was visited by 2 women who said they rep Glossip.” They were “heavy,” “1 `Inv.' & 1 `Atty,' ” who may have been on Sneed's “Appellate” team. These two women asked Sneed about lithium (“Li”), and he responded with something about getting his “ `tooth pulled.' ” Brief for Victim Family Members as Amici Curiae 9–12.
These notes correspond to Sneed's 2001 meeting with Wyndi Hobbs (Glossip's post-conviction counsel) and an investigator named Lisa Cooper, which was documented in the record of Glossip's fourth post-conviction application. See 3 App. 729–730. At this meeting, Sneed “ `signed releases for juvenile, jail, prison and criminal records,' ” id., at 729, which corresponds to the “waiver for records” mentioned in Smothermon's notes. Sneed later wrote a letter to Cooper to ensure that she received information about his participation in a “vo-tech program,” id., at 730, which corresponds to the reference to “GED. VoTech.”
According to Smothermon's notes below the line, Sneed's second visit was from a “man” named “Burch” who tried to “con [him] out” of giving “testimony” against Glossip. Burch “gave [Sneed a] case.” Ackley's notes likewise indicate that Sneed “[l]ater” met with “1 guy” named “Burch.” Sneed said of the meeting, ` “Basically all he was trying to do was con me out of not [sic] getting onto the stand.' ” Brief for Victim Family Members as Amici Curiae 9–13 (alteration in original). The flings from Glossip's fourth application also recount that Lynne Burch, one of Glossip's attorneys, met with Sneed after the OCCA vacated Glossip's frst conviction. 3 App. 731. Burch told Sneed “ `he didn't have to testify' ” in Glossip's second trial, and (in line with Smothermon's notes) gave Sneed a case, State v. Dyer, 2001 OK CR 31, 34 P. 3d 652, holding that the State could not renege on a plea agreement for refusing to testify at a codefendant's second trial. 3 App. 731–732.
Page Proof Pending Publication ties and the majority—has attempted to refute it on the merits.
Based on Smothermon's notes, Glossip fled a ffth post- conviction application in the OCCA in March 2023. He framed the notes as new evidence of Sneed's previously unknown bipolar disorder. Glossip attached an affdavit from Dr. Trombka stating that he was the only person who would have prescribed lithium while Sneed was in jail. Glossip also attached what appears to be a jail record indicating that Sneed has bipolar disorder. He argued that the State's refusal to produce these notes before trial violated Brady, on the theory that he could have used Sneed's condition to impeach his testimony.
At the same time, Glossip recognized that he would need additional evidence to prove his theory. Together with his application, Glossip also fled a motion for an evidentiary hearing, in which he sought to call Smothermon and Ackley as witnesses. Motion for Evidentiary Hearing in No. PCD– 2023–267 (OCCA), p. 2. Glossip explained in the motion that “the resolution” of his Brady claim “turns in part on interpretation of prosecutors' notes.” Motion for Evidentiary Hearing, at 1. “Without their testimony,” he acknowledged, “any fnding about what they meant or what the attorneys did or did not know when they wrote them would be speculation.” Id., at 1–2.
Independent Counsel Duncan, on the other hand, determined that no further evidence was needed. Duncan released his fnal report shortly after Glossip fled his ffth application. He agreed that the State violated Glossip's Brady rights and asserted that Smothermon's failure to correct Sneed's testimony amounted to a due process violation under Napue v. Illinois, 360 U. S. 264 (1959). Duncan based his conclusions on the speculation that “seasoned capital homicide prosecutors . . . could be expected” to know that “Trumpet” referred to Dr. Trombka and that Dr. Trombka was the psychiatrist at the Oklahoma County Jail. App. to Reply Brief in Support of Pet. for Cert. 23a. He then conPage Proof Pending Publication cluded the report with praise for Drummond, stating that Drummond's “decision to seek a stay of execution and more thoroughly examine this case may be the bravest leadership decision I've ever witnessed.” Id., at 30a.
Notably, Duncan failed to give Smothermon a meaningful opportunity to explain what her notes may have meant or what she knew about Sneed's medical history. Instead, he discussed the matter with her only once, during a 3-minute phone call. App. to Brief for Victim Family Members as Amici Curiae 31a. Worse, he gave Smothermon no chance to review the decades-old notes before asking her to explain them during the brief call. Ibid. Drummond was likewise uninterested in hearing from the attorney he and Duncan were impugning. Following Duncan's report, both Smothermon and the Van Treese family contacted Drummond's offce to request that Drummond speak with Smothermon about the notes. Id., at 6a–7a, 71a. Their pleas were ignored.4 At the attorney general's behest, the State supported Glossip's post-conviction application. It argued that Smothermon's notes proved that the prosecutors violated Brady and Napue, and that Glossip was entitled to relief under the State's PCPA. It neglected to address, however, the stringent limitations that the PCPA imposes on such subsequent applications. See § 1089(D)(8)(b).
4The majority insists that Smothermon had a fair opportunity to explain her notes because she met once with attorneys at the Reed Smith law frm and had an earlier, longer phone call with Duncan. Ante, at 255. But, the Reed Smith meeting occurred before the release of Box 8. See Reed Smith Report 80, n. 321 (noting that the Reed Smith meeting occurred in May 2022, eight months before Box 8 was released in January 2023). And—by his own admission—Duncan “forgot to ask” Smothermon about “Dr. Larry Trombka” during his earlier, longer phone call. App. to Brief for Victim Family Members as Amici Curiae 32a. The majority also faults Smothermon for not having an explanation ready during the 3minute phone call. Ante, at 255. But, without giving Smothermon an opportunity to review the notes, it was unreasonable to expect her instantaneously to recall their meaning 20 years later.
Page Proof Pending Publication The OCCA unanimously denied Glossip's ffth post- conviction application. The court frst held that Glossip had not satisfed either requirement of § 1089(D)(8)(b), and thus that the Brady and Napue claims were procedurally barred. 529 P. 3d, at 226. The OCCA then held that both claims also failed on the merits. No Brady violation occurred, the court explained, because Sneed's 1997 pretrial competency report already informed the defense of Sneed's prescription and condition. The OCCA determined that defense counsel had likely made a strategic decision not to base a defense on them. 529 P. 3d, at 226. Nor was there any Napue violation, according to the court, because Sneed's testimony “was not clearly false” and, in any event, was not material given defense counsel's choice not to raise Sneed's condition. 529 P. 3d, at 226–227. After the OCCA issued its decision, Okla- homa's Pardon and Parole Board denied clemency.
II
As an initial matter, we lack jurisdiction to review this case. “This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds.” Herb v. Pitcairn, 324 U. S. 117, 125 (1945). “Because this Court has no power to review a state law determination that is suffcient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory.” Coleman v. Thompson, 501 U. S. 722, 729 (1991). Thus, on direct review of a state-court judgment, the presence of an adequate and independent state ground imposes a “jurisdictional” limitation. Ibid. The decision below rests on such grounds, and the majority concludes otherwise only by grossly mischaracterizing the state court's analysis.
A
The PCPA authorizes a criminal defendant to collaterally challenge his conviction on the ground that it violates the Page Proof Pending Publication Page Proof Pending Publication Federal Constitution. Okla. Stat., Tit. 22, § 1080(1). But, given the extraordinary nature of collateral challenges, the statute also imposes a variety of restrictions on relief. In capital cases, the applicant must establish not just a constitutional violation, but also, among other requirements, that his claim “could not have been raised in a direct appeal” and that “the outcome of the trial would have been different but for the errors or that the defendant is factually innocent.”
§ 1089(C).
The PCPA further bars subsequent applications for relief, such as Glossip's, unless the applicant satisfes two additional requirements. As mentioned, the applicant must show that “the factual basis for the claim” was not previously “ascertainable through the exercise of reasonable diligence.”
§ 1089(D)(8)(b)(1). And, the applicant must demonstrate that “the facts underlying the claim” would, if proved, “establish by clear and convincing evidence that, but for the alleged error, no reasonable fact fnder would have found the applicant guilty of the underlying offense or would have rendered the penalty of death.” § 1089(D)(8)(b)(2). These two necessary conditions—the diligence and actual-innocence requirements—closely mirror limits that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes on successive federal habeas petitions. See 28 U. S. C. § 2244(b)(2)(B); Davison v. State, 2023 OK CR 11, ¶9, n. 1, 531 P. 3d 649, 651, n. 1.
As with other state-law requirements, the PCPA's bar on subsequent applications ordinarily will constitute an adequate and independent state ground precluding our review. It is independent because its application does not “depend upon a federal constitutional ruling on the merits.” Stewart v. Smith, 536 U. S. 856, 860 (2002) (per curiam). It is adequate as a general matter because States have no constitutional obligation to create “collateral proceedings” in the frst place. Murray v. Giarratano, 492 U. S. 1, 10 (1989) (pluralPage Proof Pending Publication ity opinion). And, it is adequate in particular cases so long as the OCCA's decision to rely on it is not “so unfounded” in existing law or the record “as to be essentially arbitrary.” Cruz v. Arizona, 598 U. S. 17, 26 (2023) (internal quotation marks omitted). A decision will be inadequate on this basis only in “the rarest of situations.” Ibid. Here, the OCCA held that the PCPA barred Glossip's application twice over because he failed to meet either the diligence or actual-innocence requirements. 529 P. 3d, at 226. The OCCA properly grounded these conclusions in its analysis of the record: It explained that because Glossip had been aware of Sneed's condition and lithium prescription since 1997, with “reasonable diligence” the Napue violation “could have been presented previously.” 529 P. 3d, at 226. Likewise, Glossip could not establish that, but for the alleged Napue violation, “no reasonable fact fnder” would have convicted him. 529 P. 3d, at 226. Correcting Sneed's testimony simply would have furnished the defense with additional impeachment evidence that did not directly contradict the State's basic theory. But, “evidence of factual innocence must be more than that which merely tends to discredit or impeach a witness.” Id., at 225 (collecting cases). The OCCA's reliance on the PCPA thus was both an adequate basis for its judgment and independent of federal law, leaving us without jurisdiction. Glossip's case should end here.
B
The majority evades this straightforward conclusion by inventing a federal holding that the OCCA never made. Before applying the PCPA's bar on subsequent applications, the majority contends, the OCCA frst addressed the State's “confession of Napue error.” Ante, at 243. The OCCA then found this confession to be “ `not based in law or fact.' ” Ibid. (quoting 529 P. 3d, at 226). Thus, the majority concludes, the OCCA premised its application of the PCPA's bar on an “antecedent holding” of “federal law,” which we have jurisdiction to review. Ante, at 243. This theory misstates the decision below and defes logic.
As the OCCA recognized (and the majority does not), the State did not merely confess to a Napue violation; it “concede[d] that [Sneed's] alleged false testimony combined with other unspecifed cumulative errors warrant post-conviction relief.” 529 P. 3d, at 226 (emphasis added). A federal claim can warrant post-conviction relief under the PCPA only if the applicant meets the PCPA's additional requirements.
See § 1089(D)(4). The State partly recognized as much, expressly acknowledging that, “[t]o obtain post-conviction relief, Glossip needs to show” that he satisfes the requirements of “§ 1089(C).” 3 App. 976. The State therefore argued that the alleged Napue violation met those requirements— namely, that the violation “could not have been asserted in a direct appeal,” and that “the result of the trial” likely would not “have been the same but for” the Napue violation and cumulative errors. 3 App. 977–978.
The OCCA properly concluded that this argument suffered a threshold defect: It ignored the PCPA's additional requirements for “subsequent application[s] for post-conviction relief” under §1089(D). Beyond showing that he met the § 1089(C) requirements, Glossip also had to show he satisfed § 1089(D)'s diligence and actual-innocence requirements. § 1089(D)(8)(b). Yet, the State never addressed those prerequisites. The OCCA thus held that Oklahoma's “concession alone cannot overcome the limitations on successive post-conviction review.” 529 P. 3d, at 226 (citing § 1089(D)(8)).5 Because the State's concession that the cir5The majority claims that the OCCA could not have meant to rely on § 1089(D) because the State “expressly attempted to waive” the requirements of that provision. Ante, at 245. The State did no such thing. In its response to Glossip's application, the State of Oklahoma contended that, “[t]o obtain post-conviction relief, Glossip needs to show” he satisfes the Page Proof Pending Publication cumstances “warrant post-conviction relief ” overlooked these additional state-law requirements, the OCCA correctly observed that the State's assertion was “not based in law or fact.” Id., at 226. And, as the OCCA's § 1089(D) citation makes clear, the court was referring to Oklahoma law, not federal law.
The structure of the OCCA's analysis reinforces this conclusion.
The relevant portion of the opinion reads as follows: Ҧ25 Glossip claims that the State failed to disclose evidence of Justin Sneed's mental health treatment and that Sneed lied about his mental health treatment to the jury. Though the State in its response now concedes that this alleged false testimony combined with other unspecifed cumulative errors warrant post-conviction relief, the concession alone cannot overcome the limitations on successive post-conviction review. See 22 O.S.
Supp. 2022, § 1089(D)(8). The State's concession is not based in law or fact.
“¶26 This issue is one that could have been presented previously, because the factual basis for the claim was ascertainable through the exercise of reasonable diligence, and the facts are not suffcient to establish by clear and convincing evidence that, but for the alleged error, no reasonable fact fnder would have found the PCPA. 3 App. 976 (citing § 1089(C)). It then offered an argument that Glossip had satisfed the PCPA's requirements. Id., at 976–978. Such an argument is distinct from a “waiver,” which “is the voluntary and intentional relinquishment of a known right.” Price v. Zhang, 2022 OK 95, ¶19, 521 P. 3d 795, 799–800. Regardless, even if the State had purported to waive § 1089(D), the OCCA nonetheless explicitly applied it. 529 P. 3d, at 226 (citing § 1089(D)(8)). Perhaps the majority thinks that ruling is too harsh—even though AEDPA's analogous limitations on successive federal habeas petitions are often, if not always, unwaivable. See Burton v. Stew art, 549 U. S. 147, 157 (2007) (per curiam). But, the harshness of such a ruling would not make it any less independent of federal law. Page Proof Pending Publication applicant guilty of the underlying offense or would have rendered the penalty of death.
Ҧ27 [Glossip's Brady claim fails on the merits.]
“¶28 The evidence, moreover, does not create a Napue error. . . .” Id., at 226–227 (footnotes omitted).
The OCCA's application of § 1089(D)'s diligence and actual- innocence requirements in paragraph 26 immediately followed its “law or fact” comment in paragraph 25. Only thereafter in paragraph 28 did the court turn to the State's Napue claim and conclude that “[t]he evidence, moreover, does not create a Napue error.” 529 P. 3d, at 226 (footnote omitted). This structure leaves no doubt that § 1089(D)'s requirements are why the State's concession failed: The application of § 1089(D) in paragraph 26 explained the immediately preceding statement that the “State's concession is not based in law or fact.” The merits discussion in paragraph 28 was a follow-on, alternative holding.
The majority's alternative interpretation is incoherent.
According to the Court, the OCCA's analysis proceeded as follows: First, the court asserted that the State's “concession alone cannot overcome the limitations on successive post- conviction review,” and expressly cited § 1089(D)'s diligence and actual-innocence requirements. Ibid. Second, the OCCA without explanation switched—in the very next sentence—to the merits and decided the Napue question in a single, conclusory assertion that the “State's concession is not based in law or fact.” 529 P. 3d, at 226. Third, after summarily deciding the merits of a federal constitutional claim, the OCCA toggled back to the procedural bar in the very next paragraph to explain why Glossip failed to meet the PCPA's procedural requirements. Fourth and fnally, the OCCA circled around to spell out its “antecedent” Napue merits holding. Ante, at 243. This reading is as convoluted and implausible as it sounds. If “the only reason” §1089(D) applied had been because the Napue claim independently Page Proof Pending Publication failed on the merits, there would have been no point in discussing § 1089(D) in the frst place. Ante, at 243.
Finally, the majority cannot fall back on Michigan v. Long, 463 U. S. 1032 (1983), which establishes a presumption that a state court has based its decision on federal law when it is “insuffciently `clear from the face of the opinion' ” that the court meant to rely on an independent state-law ground.
Ante, at 245 (quoting 463 U. S., at 1040–1041). Here, the OCCA expressly held that § 1089(D) barred any relief based on Napue. 529 P. 3d, at 226. That leaves the “face of the opinion” as “clear” as it gets. Long, 463 U. S., at 1041. The majority's tortured reading of the OCCA's “law or fact” phrase is too farfetched to undermine the force of that “plain statement” that state law resolved the case. Ibid.
C
Unable to make a plausible case from the four corners of the opinion below, the majority attempts to bolster its reading by relying on “Oklahoma precedent involving confessions of error.” Ante, at 243. In particular, in a series of decisions issued between 54 and 106 years ago, the OCCA held that a confession of error must have “a basis in the law and in the record” to be sustained. Ante, 244, and n. 6. According to the majority, these decisions establish that whenever the State identifes that a federal constitutional error occurred, all independent legal grounds for sustaining the judgment disappear. Ante, at 243–245.
We disapproved of the majority's method of fnding jurisdiction in Long. There, we decided that, as a general matter, we would no longer “decide issues of state law that go beyond the opinion that we review” to determine whether a judgment rests on an adequate and independent state ground. 463 U. S., at 1040. We adopted this practice because the “process of examining state law” ourselves “requires us to interpret state laws with which we are generally unfamiliar, and which often . . . have not been discussed at Page Proof Pending Publication length by the parties.” Id., at 1039. That concern is on full display here: Not a single merits brief in this case cites any of the decisions invoked by the majority for its grand theory of confessions of error under Oklahoma law; the majority developed it entirely sua sponte. Despite wrapping itself in the mantle of Long, the majority disregards one of its central teachings.
If we are to look at other OCCA decisions, I would start with history that is more recent and more on point. In response to Glossip's fourth application for post-conviction relief, the State explicitly “waive[d] its right to argue the claims within this . . . application are waived” under the PCPA. 3 App. 717–718. But, the OCCA refused to accept the waiver, holding that “[t]his Court alone will determine whether the rules of this Court should be abandoned.” Id., at 775; see also ante, at 238. The OCCA thus made clear that it would apply the PCPA's procedural bars whether the State wanted it to or not. It makes no sense to say, just months later—and in the same case—that the OCCA reversed course without explanation and decided that § 1089(D) becomes irrelevant when the State supports the applicant's claim for relief (while at the same time holding that § 1089(D) applies). See ante, at 245. It should go without saying that a decision issued fve months before the decision below in Glossip's own case sheds far more light on what the OCCA meant than decisions issued in different cases a century ago. In any event, the majority vastly overreads the case law it cites. The decisions establish the modest point that a confession of error does not automatically entitle a defendant to relief; rather, the OCCA will independently “examine the record” to ensure that the confession is “well founded in law.” Raymer v. State, 27 Okla. Crim. 398, 228 P. 500 (1924) (syllabus by the court); see ante, at 243–244, and n. 6. Of course, a confession that post-conviction relief is warranted is not well founded if the PCPA bars relief. And, those decisions nowhere hold that procedural bars that might render an Page Proof Pending Publication error harmless become irrelevant whenever the State confesses error.
This Court follows the same rule, derived from early English practice, that it must “examine independently” confessions of error before reversing. Young v. United States, 315 U. S. 257, 258–259 (1942) (citing Rex v. Wilkes, 4 Burr. 2527, 2551, 98 Eng. Rep. 327, 340–341 (K. B. 1770)). And, this Court applies independent bars to relief even when the Government confesses error. See, e. g., Grzegorczyk v. United States, 597 U. S. 937 (2022) (statement of Kavanaugh, J., joined by Roberts, C. J., and Thomas, Alito, and Barrett, JJ., respecting denial of certiorari) (rejecting the Government's confession of error and request for vacatur of the judgment below because the defendant's guilty plea waived his claim). Yet, the majority here foists upon Oklahoma essentially the opposite rule by requiring reversal based on errors a court has not independently ruled to be reversible. There is no basis to infer from the OCCA's duty to independently examine confessions of error that it will ignore independent grounds for upholding a conviction.
The Court's detour into state-law materials whose consideration Long strongly discouraged does nothing to undermine the straightforward conclusion that the decision below invoked § 1089(D)'s procedural bar as a hurdle independent of the Napue claim's merits. That adequate and independent state ground bars our review of this case.
III
Even if we had jurisdiction, we could not grant relief because Glossip has failed to show that he is entitled to a hearing on the merits of his Napue claim.
Napue establishes that “a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction.” 360 U. S., at 269. If a witness gives false testimony, which the prosecutor knows to be false but fails to correct, then a new trial is warranted if there is “any reasonPage Proof Pending Publication Page Proof Pending Publication able likelihood” that the false testimony could “have affected the judgment of the jury.” Id., at 270–271. A Napue claim therefore requires three elements: falsity, prosecutorial knowledge, and materiality. Here, the OCCA correctly held, at minimum, that the Napue claim fails the materiality requirement.6 6Because the OCCA did not address whether the prosecutors knew that Sneed's testimony was false, our review of the knowledge element is especially improper. The rule that “we are a court of review, not of frst view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), applies with special force to such a fact-intensive question. The OCCA, which has resolved two direct appeals and fve post-conviction applications over two decades of appeals in this case, is far more steeped in the relevant facts than this Court. And, it is at least entitled to apply Oklahoma's reticulated post-conviction evidentiary standards in the frst instance. See Okla. Stat., Tit. 22, § 1089(D)(4)(a)(1); OCCA Rule 9.7(D) (2024). The majority's analysis well illustrates our comparative disadvantage, as it over- reads silence and ignores explicit contrary evidence in an effort to leap across its inferential gaps. For example, Smothermon's notes say nothing about bipolar disorder or psychiatry. So, even if Sneed said Dr. Trombka prescribed the lithium, that is no justifcation for inferring that he communicated the reason for the prescription or the fact that Dr. Trombka is a psychiatrist. Further, we cannot assume that Smothermon already knew who Dr. Trombka was at the time of the meeting. In fact, the evidence suggests the opposite; Smothermon clearly did not understand to whom Sneed was referring given that she mistook his name for “Trumpet?” See Figure 1, supra. Finally, the Court overlooks the affdavit submitted by Glossip from Gary Ackley. It attests that, according to Ackley's contemporaneous notes of the meeting, Sneed said something about his “ `tooth' ” being “ `pulled,' ” 3 App. 940, which is how he said he was mistakenly prescribed lithium in Dr. King's report, see 2 id., at 700. Ackley also did “not recall knowing or discussing with anyone that Justin Sneed was on lithium at any time as treatment for bipolar disorder.” 3 id., at 940. The majority dismisses the signifcance of Sneed's “tooth pulled” comment on the ground that Ackley “knew lithium was not a pain medication.” Ante, at 248, n. 8. But, whether or not Sneed in fact received lithium in connection with his tooth being pulled, the fact that Sneed said something to that effect strongly undermines the supposedly “straightforward inference . . . that Sneed told Smothermon that Dr. Trombka had prescribed him the lithium.” Ante, at 248. Sneed's disputed testimony is not that he received lithium to treat a toothache; it is that he had “never seen” a
A
The OCCA held that Sneed's allegedly false statements— that he had “never seen” a psychiatrist and did not “know why” he was given lithium—were not material because the defense already had reason to know about Sneed's condition but made a strategic decision not to make an issue of it. 529 P. 3d, at 226–227. That holding is correct.
The “touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial.” Smith v. Phillips, 455 U. S. 209, 219 (1982). “Even in cases of egregious prosecutorial misconduct,” we have granted relief “only when the tainted evidence was material to the case.” Id., at 220, n. 10. To that end, the proper inquiry is whether “ `the false testimony' ” could have “ `affected the judgment of the jury.' ” Giglio v. United States, 405 U. S. 150, 154 (1972) (emphasis added); see also Napue, 360 U. S., at 269 (due process violation occurs where the State “use[s] false evidence . . . to obtain a tainted conviction”).
There is no reasonable likelihood that Sneed's challenged testimony changed the jury's verdict, because it did not bear on any contested issue. As early as 1997, the defense knew that Sneed likely suffered from an “atypical mood swing disorder” that involved “anger outburst[s],” and that his lithium prescription helped to treat it. 2 App. 699–700, 702–703; see also ante, at 247 (agreeing that “Glossip had access” to Sneed's pretrial competency report). On direct appeal from his frst conviction, Glossip's counsel identifed his use of “lithium” to “ `not to feel so angry' ” as “vital evidence to attack Sneed's credibility and the State's specious theory of the case.” 1 App. 18.
Nonetheless, the defense elected not to raise Sneed's mental condition at the second trial. Given defense counsel's awareness of the pretrial competency report, this choice psychiatrist and did not “know why” he was given lithium. 12 Tr. 64 (May 26, 2004).
Page Proof Pending Publication must have been a conscious one. Perhaps, as the OCCA suggested, the defense was concerned that highlighting “Sneed's mental health” could have the counterproductive effect of “showing that he was mentally vulnerable to Glossip's manipulation and control.” 529 P. 3d, at 226. Or, perhaps the defense believed it would not be credible to argue that Sneed acted on impulse in a manic state, given other witnesses' testimony that Sneed possessed a consistently mild- mannered disposition. See, e. g., 7 Tr. 26 (May 19, 2004); 9 Tr. 17–18 (May 21, 2004). Whatever the reason, the defense chose not to turn Sneed's mental health into an impeachment issue. That left no work for Sneed's challenged testimony to do, so it could not reasonably have affected the jury's verdict. See Napue, 360 U. S., at 269.
The majority concludes otherwise only by redefning the Napue materiality inquiry. In its view, Sneed's testimony is material because the jury's verdict could have changed “[h]ad the prosecution corrected” the testimony. Ante, at 248. Thus, even “wholly irrelevant” testimony that had no impact on the jury can be material, so long as the act of correcting it might have caused the jury to doubt the witness's credibility. Ante, at 249. We have never defned materiality in these terms. Rather, we have consistently framed the issue as whether “the false testimony” itself “had an effect on the outcome.” Napue, 360 U. S., at 272. Thus, the relevant inquiry under Napue is whether the content of the false testimony at issue is material. Were the test for materiality whether a counterfactual correction of a false statement might tend to undermine the witness's credibility, the materiality requirement would be meaningless in a great number of cases.
Napue itself illustrates this point. The “principal state witness” in that case “testifed . . . that he had received no promise of consideration in return for his testimony” when the prosecutor “had in fact promised him consideration” in the form of support for a reduced sentence. Id., at 265–266. Page Proof Pending Publication Page Proof Pending Publication The Court did not fnd this false testimony material merely because such testimony generally undermines a witness's credibility. Rather, the Court took issue with the content of the testimony: “Had the jury been apprised of the true facts, . . . it might well have concluded that [the witness] had fabricated testimony in order to curry the favor of the” prosecutor. Id., at 270; see also Wearry v. Cain, 577 U. S. 385, 393–394 (2016) (per curiam) (similarly fnding false testimony material because it concerned whether the witness was receiving favorable treatment in exchange for testimony); Giglio, 405 U. S., at 154–155 (same).
Rather than base its holding on Napue's actual discussion of materiality, see 360 U. S., at 270–272, the majority seizes on a line from a different section of the opinion: that “ ` “[a] lie is a lie, no matter what its subject.” ' ” Ante, at 249, 253 (quoting 360 U. S., at 269–270). But, the majority omits the second half of the sentence: “ `and, if it is in any way rele vant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.' ” Id., at 270 (emphasis added). Read in its entirety, the sentence makes clear that the prosecutor's “ `duty to correct' ” is triggered only if the false statement “ `is . . . relevant to the case.' ” Ibid. That specifcation is inconsistent with the majority's conception of Napue, under which any known false statement triggers the duty to correct, and then the question of materiality turns on a counterfactual inquiry into whether the failure to correct could have affected the outcome of the trial.7 7The full context of Napue's materiality discussion further underscores the decision's emphasis on the content of the false testimony rather than the effect of a counterfactual correction: “Had the jury been apprised of the true facts, however, it might well have concluded that Hamer [the witness] had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which Hamer was testifying, for Hamer might have believed that such a representative was in a position to implement (as he ultimately attempted to do) any promise of consideration. That the The majority's novel approach also unmoors the Napue materiality standard from its theoretical justifcation. This Court applies a defendant-friendly standard of materiality to Napue claims “because they involve a corruption of the truth-seeking function of the trial process.” United States v. Agurs, 427 U. S. 97, 104 (1976). Where the jury does not rely on the false testimony because it is irrelevant, no such corruption occurs.
B
In any event, the majority fails its own test. Even framing the question as whether a correction could have affected the outcome of trial, the parties have not established materiality.
First, irrespective of whether Sneed lied, prosecutorial correction of his testimony would not have led the jury to infer that he had consciously committed perjury. The far more plausible inference would have been that Sneed simply misremembered—like numerous other witnesses in the same trial. Recall that Glossip's second trial took place seven years after the events in question and six years after his frst trial. Many key witnesses in Glossip's second trial testifed in his frst, leaving them open to impeachment on any details they remembered differently six years later.
The record is replete with instances of counsel—including the prosecutors—reminding the State's witnesses of facts they had forgotten or misremembered. See, e. g., 5 Tr. 90 (May 17, 2004); 7 Tr. 83–85 (May 19, 2004); 8 Tr. 40–42 (May 20, 2004); 9 Tr. 100 (May 21, 2004); 10 Tr. 31 (May 24, 2004); Assistant State's Attorney himself thought it important to establish before the jury that no offcial source had promised Hamer consideration is made clear by his redirect examination, which was the last testimony of Hamer's heard by the jury: .
.
.
.
.
“[O]ur own evaluation of the record here compels us to hold that the false testimony used by the State in securing the conviction of petitioner may have had an effect on the outcome of the trial.” 360 U. S., at 270–272. Page Proof Pending Publication Page Proof Pending Publication 14 Tr. 18 (May 28, 2004). Moreover, Sneed took lithium for only a brief period in 1997. Considering that this testimony held no signifcance for any contested issue at trial, in this environment there is no reason to think its correction would have been noteworthy, much less the voilà moment the majority imagines.
Second, correcting Sneed's allegedly false statements would not have led the jury to believe that Sneed's mental condition led him to attack Van Treese on his own initiative. To begin with, the prosecution had no Napue obligation to disclose that Sneed had bipolar disorder. Napue requires prosecutors “to correct” what they know to be “false testimony,” not to proactively identify impeachment material.
360 U. S., at 265. At most, the only false statement was Sneed's assertion that he had not seen a psychiatrist. The OCCA found Sneed “was more than likely in denial of his mental health disorders.” 529 P. 3d, at 227. This factual fnding has record support. Sneed asserted during his pretrial competency evaluation that he “does not think he has any serious mental problems.” 2 App. 701. That statement predated his plea agreement and so cannot be chalked up to trying to maintain his credibility on the stand. The OCCA thus reasonably found Sneed's statement about his own knowledge was not false. Nor did Sneed testify that he was given lithium to treat a cold. See ante, at 253. He said only that “shortly after” he had asked for Sudafed he was given lithium for a “reason” that he “d[id]n't know.” 12 Tr. 64 (May 26, 2004). Sneed thus never falsely testifed as to why he received lithium. And, without knowing why a psychiatrist prescribed lithium to Sneed, a lay jury would not likely be able to attribute much signifcance to the mere fact that a psychiatrist did so.
Regardless, there is no reason to think that disclosing Sneed's bipolar disorder would have affected the outcome of the trial. Glossip's defense team was well aware of Sneed's condition and chose not to use it as impeachment evidence. Page Proof Pending Publication As appellate judges examining a cold record 20 years after the trial, we should be wary of believing that we understand the import of evidence better than Glossip's counsel. Moreover, the defense made no effort in its questions and argumentation to lay the groundwork for a theory that Sneed acted on a manic impulse. So, it is hard to see why the jury would have developed any theory on its own from a cursory mention of the condition.
Finally, the Court cannot rescue its materiality analysis by invoking the cumulative-error doctrine. The Court asserts with virtually no legal analysis that various other violations of state and federal law undermine confdence in the verdict. Ante, at 250–251. But, the cumulative-error doctrine applies only if there are multiple errors to consider cumulatively. See Wearry, 577 U. S., at 394 (only “wrongfully withheld” evidence can be assessed cumulatively under Brady and Napue); Hanson v. Sherrod, 797 F. 3d 810, 852 (CA10 2015) (“We cumulate error only upon a showing of at least two actual errors”). The OCCA held that the remaining claims of error the Court asserts are either procedurally barred, meritless, or both. See 529 P. 3d, at 227; 3 App. 776– 783; No. PCD–2022–589 (OCCA, Nov. 10, 2022), p. 11; supra, at 270–272. We did not grant certiorari to review the correctness of those decisions, so they are not properly before us. See Pet. for Cert. i.
In all events, the other claimed violations are meritless or beyond our jurisdiction. The State's supposed violation of the rule of sequestration is a state-law issue over which we have no jurisdiction. See 3 App. 780–781.8 The evidence8The majority insists that the alleged violation of the rule of sequestration is more than a state-law issue, ante, at 251, n. 9, but for support it offers only a case discussing “the ethical limits on guiding witnesses” as defned by the American Bar Association's model professional responsibility code for States, see Geders v. United States, 425 U. S. 80, 90, and n. 3 (1976). Moreover, although the State has confessed a violation of “the rule of sequestration” (without addressing the OCCA's earlier, contrary decision, see supra, at 272), it has not conceded that Smothermon improperly infuenced Sneed's testimony, see Brief for Respondent 13; 3 App. Page Proof Pending Publication destruction claim is the majority's own creation. Although both parties mention alleged evidence destruction in the background statements of their briefs, neither argues to this Court that any destruction of evidence amounted to a violation of federal law militating in favor of reversal. See Brief for Petitioner 33–38; Brief for Respondent 30–31. So too, there is no evidence that Sneed wished to “recant” his testimony, ante, at 251; to the contrary, Sneed explained to Reed Smith that “recant[ing]” was “impossible because I told the truth,” 3 App. 724 (internal quotation marks omitted); see also n. 2, supra (further explaining that Sneed has never denied the truth of his testimony against Glossip). And, the claim that Glossip sold his couch and television for $900 on January 8—thus suggesting an alternative source for the money he stole from Van Treese—is a nonstarter: Glossip himself testifed under oath that he received only $490 for those items and others. 15 Tr. 17 (June 1, 2004).
In short, even setting aside our lack of jurisdiction, Glossip still lacks a valid Napue claim because Sneed's allegedly false testimony was immaterial.
IV
Having erred in both its threshold and merits analyses, the majority rounds out its opinion with an indefensible remedial decree. Rather than vacate the decision below, the majority takes the remarkable step of requiring a new trial. Ante, 978. Such a claim is utterly unsupported. Glossip initially based this accusation on “handwritten notes” found in a copy of Smothermon's letter to Sneed's attorney, which Glossip claimed were instructions from Smothermon on what Sneed was to say at trial. See Pet. for Cert. in No. 22– 6500, p. 20. But, Glossip now concedes that those notes came from Sneed's attorney, not Smothermon. Brief for Petitioner 13, n. 4. Despite this concession, the majority asserts that Smothermon acted improperly when she stated at trial that, although she had spoken with Sneed's attorney, she had never before heard him claim that he had attempted to stab Van Treese in the chest. Ante, at 251–252, n. 9 (citing 12 Tr. 107–108 (May 26, 2004)). The majority offers no evidence to suggest that this statement was false. Yet, it insists on deeming Smothermon's conduct a serious ethical breach.
at 256–258. But, whether Glossip is entitled to a new trial turns on several unresolved questions of state law that this Court has no authority to disregard or decide for itself. And, at the very least, Glossip cannot show that he is entitled to relief without an evidentiary hearing.
A
Even if the majority is correct that this Court has jurisdiction and that the OCCA misapplied Napue, the appropriate remedy is to remand for further proceedings. This Court has no authority to order a new trial.
This Court cannot order a new trial unless federal law re quired the OCCA to do so in the decision below. “It is beyond dispute that we do not hold a supervisory power over the courts of the several States.” Dickerson v. United States, 530 U. S. 428, 438 (2000). “Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights.” Herb, 324 U. S., at 125–126. Even when a federal question gives this Court jurisdiction to review a state-court judgment, “State courts” remain “the only proper tribunal” for “the decision of questions” in the case “arising under their local law.” Murdock v. Memphis, 20 Wall. 590, 626 (1875). Thus, when a state court's judgment rests on an erroneous interpretation of federal law, this Court must “either render such judgment here as the State court should have rendered, or remand the case to that court, as the circumstances of the case may require.” Id., at 636. It has no authority to order relief that the state court could legitimately have refused. And, naturally, we cannot determine what judgment “the State court should have rendered” if doing so requires resolving questions of state law beyond our jurisdiction. Id., at 626, 636. In such cases, remand is the only legitimate disposition. Id., at 636.
Page Proof Pending Publication Our customary practice refects these principles. “Normally the Supreme Court, when reversing a state court judgment, remands the case for proceedings `not inconsistent' with the Court's opinion. The state court is therefore free to resolve any undecided questions or even to alter its determination of underlying state law.” W. Baude, J. Goldsmith, J. Manning, J. Pfander, & A. Tyler, Hart and Wechsler's The Federal Courts and the Federal System 634 (8th ed. 2025) (Hart & Wechsler); accord, S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice § 3.27, p. 3–94 (11th ed. 2019). The Court usually refrains from directing a specifc form of relief even when reversing decisions made on direct appeal of a criminal conviction, with no apparent issues of state law remaining to be decided.
See, e. g., Counterman v. Colorado, 600 U. S. 66, 82–83 (2023); Oklahoma v. Castro-Huerta, 597 U. S. 629, 656 (2022); Hemphill v. New York, 595 U. S. 140, 156 (2022).
The Court today instead “remand[s] the case for a new trial.” Ante, at 231. This step would be unusual even on direct review. In the context of a successive motion for post- conviction relief in a state-law regime replete with specialized procedural requirements, it is without precedent. And, more importantly, the majority's directive exceeds the limits on this Court's jurisdiction. For at least three reasons, state-law questions prevent this Court from holding that the OCCA should have granted Glossip a new trial below.
First, the majority's jurisdictional holding necessarily leaves open state-law questions for the OCCA to address on remand. The Court fnds jurisdiction by invoking the Long presumption that a state court “reli[es] on federal law” when it is “insuffciently `clear from the face of the opinion' ” that its decision rests on state law. Ante, at 245 (quoting 463 U. S., at 1040–1041). But, the Long presumption is just Page Proof Pending Publication that—a presumption. When this Court invokes it, state courts “remai[n] free” to “ `reinstat[e] their prior judgments after clarifying their reliance on state grounds.' ” Arizona v. Evans, 514 U. S. 1, 8, and n. 3 (1995); see also Kansas v. Carr, 577 U. S. 108, 128 (2016) (Sotomayor, J., dissenting) (recognizing that, when this Court relies on the Long presumption, the “lower court is able to reinstate its holding as a matter of state law”). “Even when the Supreme Court does review an ambiguous decision and reverses on the federal issue, the state courts retain the power on remand to consider independent state-law grounds and, indeed, to rely on such grounds in reinstating their initial judgment.”
Hart & Wechsler 672. The OCCA is therefore entitled to clarify that it meant to invoke § 1089(D)'s bar on subsequent applications even accepting the majority's Napue analysis. The majority's contrary directive ignores settled law.
This error is no mere technical violation. It erases an essential component of the Long presumption, which is meant to “preserve the integrity of federal law” and to “provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference.” 463 U. S., at 1041. Presuming a federal basis for ambiguous decisions ensures that States cannot evade federal review by obfuscation. At the same time, allowing for clarifcation on remand preserves state courts' freedom to develop and apply their own law as they see ft. We have even said that reversing under the Long presumption makes state courts “freer” to develop their own law because they can do so while “disabused of [an] erroneous view of what the United States Constitution requires.” Evans, 514 U. S., at 8. In contrast, under the majority's approach, ambiguity in the decision below gives this Court license to vaporize any independent state grounds that it does not like, no matter how clearly they ought to apply as a matter of state law. This sort of federal power grab dishonors our dual system of state and federal courts.
Page Proof Pending Publication Second, even setting aside § 1089(D)(8), there are several potential independent state-law grounds for denying relief that the OCCA has not yet considered. Where there is “a possible adequate and independent state ground” for the decision below that “was not addressed by the state court,” “the state court may address th[e] question on remand.”
California v. Ramos, 463 U. S. 992, 997–998, n. 7 (1983). Indeed, the “settled rule” is that “the Supreme Court will remand to permit the state court to resolve the undetermined state law issue.” Hart & Wechsler 655. “The state court remains free to reinstate its prior judgment on that state-law ground.” Ibid. (collecting cases of reinstatement); see also Smith v. Texas, 550 U. S. 297, 325 (2007) (Alito, J., dissenting) (“[I]n cases in which this Court has reversed a state-court decision based on a possible federal constitutional violation, it is not uncommon for the state court on remand to reinstate the same judgment on state-law grounds” (collecting cases)). Here, several potential grounds for reinstating the decision below are apparent.
To begin, the alleged Napue violation may be harmless under the PCPA's prejudice standard. See §1089(C)(2).
Below, the OCCA recognized that this standard required Glossip to prove that preventing the errors he alleged “would have changed the outcome” of the trial. 529 P. 3d, at 224; see § 1089(C)(2). In its confession of error, the State also agreed that “Glossip needs to show . . . that the outcome of the trial would have been different.” 3 App. 976 (citing § 1089(C)). The OCCA had no occasion to consider this standard, however, because it concluded that any false testimony would have been immaterial under the federal noreasonable-probability standard. See 529 P. 3d, at 227.
The Court today applies that standard and disagrees. Ante, at 248–252. But, no court has yet applied § 1089(C)(2)'s higher—and concededly applicable—standard. The OCCA should have the chance to do so on remand.
Page Proof Pending Publication In addition, in the proceedings below, only the State argued that there was a Napue violation, and it is unclear whether the State can raise a claim on a defendant's behalf. See § 1089(A) (assuming that an “application for postconviction relief” comes from “a defendant”). Nor is it clear that the State timely raised its Napue objection. State law required Glossip to fle his application within 60 days of the State's disclosure of Box 8. See OCCA Rule 9.7(G)(3).
Glossip met that deadline. The State did not. See 3 App.
973 (response dated 69 days after disclosure of Box 8).
Thus, any Napue claim is at least arguably untimely. And, there may be more state-law issues for the OCCA to consider of which we are unaware simply because we are unfamiliar with Oklahoma's highly specialized post-conviction procedure.
Third, even if state law does not bar Glossip's Napue claim entirely, state law appears not to authorize a new trial as the remedy for a violation at this stage. Cf. Price v. Georgia, 398 U. S. 323, 332 (1970) (remanding after fnding petitioner's conviction unconstitutional because petitioner's precise remedy turned “upon the construction of several Georgia statutes and on the power of Georgia courts to fashion remedial orders” “under Georgia law”). The PCPA authorizes only two dispositions of a capital post-conviction application when it is frst fled with the OCCA: denial, or remand to the trial court for a merits determination. §§ 1089(D)(4) and (5).
The OCCA has made clear that the Act does not authorize vacating the applicant's conviction or sentence at that initial stage, for “affdavits and evidentiary materials fled in support of a post-conviction application are not part of the trial record but are only part of the capital post-conviction record.” Slaughter v. State, 2005 OK CR 2, ¶11, 105 P. 3d 832, 835. “As such, those affdavits and evidentiary materials are not reviewed on their merits but are reviewed . . . `[t]o determine if a threshold showing is met to require a review on Page Proof Pending Publication the merits.' ” Ibid. (quoting OCCA Rule 9.7(D)(1)(a); emphasis added).
In this respect, the OCCA's initial review of capital post- conviction proceedings is analogous to AEDPA's procedure for second and successive federal habeas petitions. Before an applicant can proceed with such a petition, he must frst fle a motion for authorization in the court of appeals. 28 U. S. C. § 2244(b)(3)(A). If the applicant makes a prima facie showing that he satisfes the special requirements for second and successive petitions, the court of appeals authorizes proceedings in the district court. § 2244(b)(3)(C). But, if the applicant fails to make a prima facie showing, the court of appeals denies authorization, and the proceedings end. No matter how strong the applicant's ultimate claim, the court of appeals cannot grant habeas relief at that stage; only a district court may do so. For the same reason, it makes no sense to say that no “further evidentiary proceedings” are warranted because the OCCA “agree[d]” they are unnecessary. Ante, at 256. The OCCA's authority to deny relief without a hearing does not imply corresponding authority to summarily grant relief.
In short, multiple state-law issues foreclose this Court from holding that the OCCA “should have rendered” a “judgment” ordering a new trial. Murdock, 20 Wall., at 636.
The Court therefore has no authority to order one itself. The majority insists that “Glossip is entitled to a new trial” simply because “this Court has jurisdiction” and “[a] new trial is the remedy for a Napue violation.” Ante, at 258. This response overlooks, however, that “States may apply their own neutral procedural rules to federal claims.” How lett v. Rose, 496 U. S. 356, 372 (1990). Here, Glossip seeks post-conviction relief under Oklahoma's PCPA.
See § 1080(1); supra, at 277–279. Under that Act, a new trial is not Page Proof Pending Publication Page Proof Pending Publication the remedy for a Napue violation unless Glossip also satisfes certain procedural requirements and unless his case frst proceeds to a merits hearing before a state trial court. See § 1089(D)(4); Slaughter, 105 P. 3d, at 835.
For similar reasons, the majority's reliance on Ake v. Okla homa, 470 U. S. 68 (1985), in which this Court reversed the OCCA and remanded for a new trial, id., at 73–74, 87, is misplaced. See ante, at 258. The asserted state ground in that case was a “waiver rule” with an established exception for “federal constitutional errors.” 470 U. S., at 74–75. In other words, the waiver rule turned on “whether federal constitutional error ha[d] been committed.” Id., at 75. Thus, it was perfectly clear that the rule there could not supply an independent ground for denying a federal constitutional claim. And, because the case arose on direct review, id., at 73–74, the Court could also have confdence that no other state ground could support the decision below, and therefore that the petitioner was legally entitled to a new trial. Here, by contrast, the Court has found jurisdiction only by applying the Long presumption; the case arises from a subsequent post-conviction application in a complex state-law regime that imposes numerous procedural bars; there are several state grounds that could foreclose relief entirely; and the OCCA issued the decision below in a preliminary posture in which it was not authorized to order a new trial. Further, although the new-trial order in Ake was legally defensible, it was still a signifcant departure from ordinary practice, which is to remand for further proceedings even on direct review. See supra, at 294–295.
The majority further insists that no “precedent” requires a remand based on the Long presumption. Ante, at 257. It claims that at most this Court has recognized the power of state courts to “ `grant relief to criminal defendants' ” under state law after erroneously granting relief under federal law. Ibid. That assertion is incorrect. Evans recognized state courts' power to reinstate their judgments after reversal as part of a general discussion of the Long presumption. See 514 U. S., at 7–9. Its reasoning was not confned to the specifc context of a state court granting relief to a criminal defendant. Similarly, treatise writers have recognized that state courts can reinstate their judgments whenever this Court “review[s] an ambiguous decision.” Hart & Wechsler 672. And, more fundamentally, when this Court asserts jurisdiction based on the Long presumption, “we merely as sume that there are no [adequate and independent state] grounds” justifying the decision below; we do not conclu sively decide that none exists. 463 U. S., at 1042 (emphasis added). Without a defnitive ruling that no independent state ground bars ordering a new trial, we cannot hold that ordering a new trial is the “judgment” that “the State court should have rendered.” Murdock, 20 Wall., at 636. The majority cannot have it both ways. If it wants to rely on the Long presumption to fnd jurisdiction, it must accept the limitations that the presumption entails.
Finally, the majority asserts that Glossip is presently entitled to a new trial, because, under Oklahoma law, a concession that an error occurred at trial renders irrelevant all other legal obstacles to a new trial. Ante, at 256–257. As I have already explained, the precedents cited by the Court do not support that proposition; they establish only that courts have an independent duty to assess confessed errors for themselves, which is nearly the opposite of the majority's point. Supra, at 284–285. To make matters even more implausible, the Court apparently interprets this principle to mean that a confession of error transforms a nonmerits preliminary proceeding into a merits proceeding where the OCCA can directly order ultimate relief. And, more importantly, it is for the OCCA to decide whether state law entPage Proof Pending Publication tles Glossip to a new trial at this time, and it is absurd to think that the only conclusion the OCCA could reach is the majority's.
B
Even if we could blind ourselves to the foregoing procedural issues, Glossip would still be entitled to no more than an evidentiary hearing on his Napue claim. The Court says that the facts “supported by the record establish a violation of Napue,” as though it were a trial court making fndings after an evidentiary hearing. Ante, at 258. That approach cannot possibly be right. The PCPA envisions that further proceedings are necessary if there are “controverted, previously unresolved factual issues.” § 1089(D)(5). On this record, I do not see how one could conclude that there is not even a genuine issue of fact as to whether a Napue claim has been established—especially considering that Glossip himself recognized below that, without further discovery, his claims rested on “speculation.” Motion for Evidentiary Hearing, at 1–2.
Concluding that no new factual development is needed is particularly inappropriate given the alternative reading of the notes advanced by the Van Treese family in this Court. As discussed above, the family has argued that the supposed “smoking gun”—the notes from Box 8—in fact refects Sneed's recollection of what defense counsel had asked him at two prior meetings. Supra, at 273–275, and n. 3. Smothermon and Ackley have likewise endorsed this interpretation, which casts serious doubt on Glossip's and the State's theory. Ibid. If Sneed simply reported that he was asked about Dr. Trombka without admitting Dr. Trombka prescribed him lithium, Smothermon and Ackley would have had no reason to know that Dr. Trombka prescribed him lithium. And, the indication in Ackley's notes that Sneed apparently mentioned his “ `tooth' ” being “ `pulled' ” suggests that Sneed stood by his earlier story that he was mistakenly prescribed lithium Page Proof Pending Publication when his tooth was pulled. 3 App. 940; see 2 id., at 700 (Sneed's earlier statement).
Given the existence of a plausible alternative interpretation of the evidence, I would not order a new trial at this time even if we had discretion to do so. To the extent the Court insists it cannot endorse the family's theory because it relies on “extra-record materials not properly before the Court,” ante, at 254, such as parts of Ackley's notes, that is because the parties collusively excluded this highly relevant evidence from the record in order to reach a predetermined outcome. The majority rewards this gamesmanship, and in so doing denies the victim's family the opportunity to present contrary evidence.
The “Government should turn square corners in dealing with the people.” St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). That command extends not only to criminal defendants, but also to their victims. “[C]onducting retrials years later inficts substantial pain on crime victims,” who must “relive their trauma and testify again,” in this case 28 “years after the crim[e] occurred.”
Edwards v. Vannoy, 593 U. S. 255, 263–264 (2021). The Oklahoma Constitution recognizes this interest by giving crime victims like the Van Treese family the right—“which shall be protected by law in a manner no less vigorous than the rights afforded to the accused”—“to be heard in any proceeding involving release, plea, sentencing, disposition, parole and any proceeding during which a right of the victim is implicated.” Art. II, § 34(A). Glossip, on the other hand, would suffer no prejudice from an evidentiary hearing in which the Van Treese family had the opportunity to present its case. If the evidence is as decisive as the majority believes, Glossip would still receive a new trial. There is no excuse for denying the Van Treese family its day in court.
After having bent the law at every turn to grant relief to Glossip, the Court suddenly retreats to faux formalism when Page Proof Pending Publication dealing with the victim's family. The Court concludes that it need not honor the family's right to be heard because the family did not request an evidentiary hearing earlier in the proceedings. Ante, at 256, n. 11. But, the family had no need to do so, since Glossip had conceded that “a hearing is necessary” for his claim to rise above the level of “speculation.” Motion for Evidentiary Hearing, at 2. And, before this Court, the Van Treese family has vigorously asserted its interests. The family fled the only brief opposing certiorari in this case. See Brief for Victim Family Members et al. as Amici Curiae in Opposition. It fled a merits brief highlighting critical evidence that the parties sought to sweep under the rug. See supra, at 273–275, and n. 3. And, it fled a motion to participate in oral argument, which this Court denied. 603 U. S. 941 (2024). The majority's assertion that the family has sat on its rights is groundless. Nor is there any reason to believe that Oklahoma victims' right to be heard in “any proceeding,” Art. II, § 34(A), contains an implicit exception for “post-conviction hearings,” ante, at 256, n. 11. Finally, even if the family had no formal right to be heard, any reasonable factfnder plainly could consider the account of the evidence that the family has brought to light, making the majority's procedural objections beside the point. Make no mistake: The majority is choosing to cast aside the family's interests. I would not.
* * * The Court's decision distorts our jurisdiction, imagines a constitutional violation where none occurred, and abandons basic principles governing the disposition of state-court appeals. I respectfully dissent.
Page Proof Pending Publication Page Proof Pending Publication Reporter’s Note The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made: p. 229, line 26: “157 P. 3d 143” is changed to “529 P. 3d 218” p. 251, n. 9, line 4: “that” is inserted before “Sneed” p. 258, line 4: “state” is inserted before “constitutional”