dissenting:

I believe the majority has gone beyond the proper role of a federal court hearing a challenge to the constitutionality of a death sentence under the laws of Arizona, by casting a searching'and suspicious eye on not only the judge who sentenced petitioner to death, but also the Arizona Supreme Court which independently concluded death was an appropriate penalty. Because I believe a fair review of the record shows the courts of Arizona understood and applied the Arizona death, penalty statute in conformity with the United States Constitution by considering all mitigating evidence offered by petitioner, I cannot join in the majority opinion.

The Eighth and Fourteenth Amendments to the Constitution require the sentencing court to consider all relevant mitigating evidence proffered by a defendant in a death penalty case. Lockett v. Ohio, 438 U.S. 586, 604 , 98 S.Ct. 2954, 2964 , 57 L.Ed.2d 973 (1978) (plurality); Eddings v. Oklahoma, 455 U.S. 104, 110 , 102 S.Ct. 869, 874 , 71 L.Ed.2d 1 (1982). The Arizona death penalty statute satisfies the Constitution in this regard by directing the sentencing judge to consider as mitigating circumstances, in addition to five specifically-enumerated factors, “any factors proffered by the defendant which are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant’s character, propensities or record and any circumstance of the offense.” Ariz.Rev.Stat. § 13-703(G). The *1086 Arizona Supreme Court has fully embraced the statutory and constitutional requirement to consider all mitigating evidence. State v. Watson, 120 Ariz. 441 , 586 P.2d 1253, 1256-57 (1978), cert. denied, 440 U.S. 924 , 99 S.Ct. 1254 , 59 L.Ed.2d 478 (1979). The Arizona death penalty statute, however, requires the defendant to prove such mitigating factors by a preponderance of the evidence. Ariz.Rev.Stat. § 13-703(C) (1989); State v. McMurtrey, 143 Ariz. 71 , 691 P.2d 1099 (1984). The United States Supreme Court just last term upheld the Arizona death penalty statute’s allocation of the burden of proof against constitutional challenge, even though a sentencing judge in Arizona may, as a result of the burden of proof, disregard evidence offered in mitigation which does not rise to a certain level of persuasiveness. Walton v. Arizona, 497 U.S. 639 , -, 110 S.Ct. 3047, 3055 , 111 L.Ed.2d 511 (1990).

The record shows petitioner presented evidence in support of three distinct mitigating circumstances: (1) he was under the influence of heroin at the time of the murder; (2) he killed in the heat of passion; and (3) he truthfully denied committing the murder. State v. Jeffers, 135 Ariz. 404 , 661 P.2d 1105, 1132 (1983). The record further shows the trial judge considered all of the evidence presented by petitioner at his trial and in post-trial proceedings as to these three factors. Id. 661 P.2d at 1132 ; Transcript of sentencing hearing, July 10, 1980, page 216. The court expressly addressed petitioner’s drug usage. Id. The court specifically discussed the claim of provocation. Id. The judge also adverted to the “lack of evidence” claim, raised in a post-trial evidentiary hearing June 20, 1980, by referring to all evidence presented at post-trial proceedings. Id. The trial judge then made clear that his consideration of the mitigating evidence was not restricted to the mitigating circumstances specified by statute: “The Court’s search for mitigating circumstances has not been limited to either of these statutes [Ariz. Rev.Stat. § 13-454 and Ariz.Rev.Stat. § 13-703] but pursuant to State v. Watson and Lockwood v. Ohio [sic], the Court has considered any possible mitigating circumstances.” Id. Having reviewed the entire record, the court concluded petitioner had failed to meet his burden of proving by a preponderance of the evidence any mitigating circumstance: “The Court finds that there are no mitigating circumstances.” Id. 1

On direct review, the Arizona Supreme Court upheld the sentence of death. The court independently considered the mitigating evidence offered by petitioner. The Court reviewed the evidence of drug intoxication offered by petitioner and agreed with the trial court that there was no credible evidence of any significant impairment. State v. Jeffers, 661 P.2d at 1132 . The *1087 Court likewise found no evidence in the record to support petitioner’s claim that he had killed in the heat of passion. Id. The only mitigating factor offered by petitioner which the Arizona Supreme Court did not explicitly reject as unsupported by credible evidence was his claim that he had maintained his innocence while under the effects of sodium amytal. The Arizona Supreme Court characterized the trial court’s rejection of this evidence as follows: “The record shows the trial court considered all the evidence presented at trial and at the post-trial hearings and found no mitigating factors sufficiently substantial to call for leniency.” 661 P.2d at 1132 .

Because the sentencing court clearly accepted petitioner’s claims as legally relevant to the issue of mitigation, and just as clearly rejected those claims due to the lack of credible evidence in support of them, I cannot agree with the majority’s conclusion that the trial court failed to adequately consider the mitigating evidence in violation of the Constitution.

The majority believes that the Arizona sentencing judge may have failed to consider the mitigating evidence offered by petitioner under the catch-all category of mitigating circumstances, even if the court correctly determined the evidence did not establish a “significant impairment” under § 13-703(G)(1) or “substantial or unusual duress” under § 13-703(G)(2). The majority believes the sentence of death cannot stand based on this court’s prior decision in Smith v. McCormick, 914 F.2d 1153 (1990). I disagree.

The defendant in Smith presented evidence of LSD intoxication to establish “extreme mental or emotional disturbance” under Mont.Code Ann. § 46-18-304(2) and to show that his “capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired” under Mont.Code Ann. § 46-18-304(4). 914 F.2d at 1164 . The defendant also presented the testimony and letters of numerous character witnesses. Id. at 1165. The Montana sentencing court failed to consider all of the mitigating evidence offered by petitioner, stating that the character evidence was “peripheral and extraneous ... and must not be brought to bear upon the Court’s determination of a just and necessary punishment.” Id. (emphasis added in reported decision of this Court).

The Montana trial court’s failure to consider all mitigating evidence in clear violation of Lockett v. Ohio, as well as its mechanical approach of weighing each mitigating factor separately, Smith v. McCormick, 914 F.2d at 1164 , arguably called into question the reliability of the trial court’s treatment of the mitigating evidence under §§ 46-18-304(1) and (4). A divided panel of this court concluded re-sentencing was constitutionally required in Smith because on the record presented there, the Montana sentencing judge may have failed to consider the independent mitigating effect of the proffered evidence, of LSD intoxication, even if it did not rise to the level of an “extreme mental or emotional disturbance” under the statutory mitigating circumstance § 46-18-304(1) or a “substantial” impairment under § 46-18-304(4). Id. at 1165.

This court’s prior decision in Smith does not compel resentencing of petitioner. To begin with, the two Arizona statutory mitigating circumstances in question here do not require a death-eligible defendant to prove an “extreme” mental condition or impairment. The standard in Arizona is a “significant” impairment (under § 13-703(G)(1)) and “substantial” duress (under § 13-703(G)(2)). Once a sentencing court in Arizona determines that evidence of intoxication does not show the defendant’s capacity to appreciate the wrongfulness of his actions was significantly impaired, I believe there is no meaningful residual category of mitigating evidence left for the court to consider. Intoxication which does not lead to a significant impairment simply does not call into question the defendant’s responsibility for his actions or otherwise further a claim for leniency — i.e., it is not relevant mitigating evidence. The Arizona Supreme Court has recognized as much, holding that intoxication at . the time of the murder, without a showing of significant impairment, is not a mitigating circum *1088 stance. State v. Lopez, 163 Ariz. 108 , 786 P.2d 959, 965 (1990); State v. Rossi, 146 Ariz. 359 , 706 P.2d 371, 379 (1985); State v. Woratzeck, 134 Ariz. 452 , 657 P.2d 865, 871 (1982); State v. Jordan, 126 Ariz. 283 , 614 P.2d 825, 832 , cert. denied, 449 U.S. 986 , 101 S.Ct. 408 , 66 L.Ed.2d 251 (1980).

The Arizona Supreme Court’s determination that evidence of intoxication, without some meaningful level of impairment, is not relevant evidence in mitigation, reflects a considered judgment about the role of drugs and alcohol in capital crimes. The fact that many if not most death-eligible defendants consumed drugs or alcohol pri- or to committing first degree murder does not alone help to explain why those individuals should be shown mercy. The voluntary act of taking drugs or alcohol has no tendency to mitigate against the penalty of death unless it can also be said that the person’s behavior was in some significant manner influenced by that act. I believe the Arizona courts may classify such evidence as irrelevant to the issue of mitigation without violating the Constitution. See Harris v. Pulley, 885 F.2d 1354, 1383 (9th Cir.1988) (courts in California need not consider as a mitigating circumstance evidence that a death-eligible defendant suffers from an anti-social personality disorder since that disorder commonly afflicts those who kill). 2

The majority believes that the Arizona Supreme Court’s interpretation of its mitigating circumstance Ariz.Rev.Stat.Ann. § 13-703(G)(1) violates Lockett and Eddings, ante at p. 1078 n. 1, but I fail to see where the Constitution requires sentencing courts to give effect to “insignificant” impairments or “insubstantial” duress. Both Lockett and Eddings speak to “what mitigating evidence a senténcer must consider [not] to how it must consider the evidence.” Saffle v. Parks, 494 U.S. 484, 490, 110 S.Ct. 1257, 1261 , 108 L.Ed.2d 415 (1990). Plainly, “evidence of mitigation must rise to some level of persuasiveness before it can be said to constitute a mitigating circumstance.” Eddings v. Oklahoma, 455 U.S. at 126 , 102 S.Ct. at 882 (Burger, C.J., dissenting). As the Supreme Court held last term in Walton v. Arizona, Arizona courts may reject relevant evidence offered in mitigation — even as to the existence of an extreme impairment or duress — if it does not rise to a certain level of persuasiveness. 497 U.S. at -, 110 S.Ct. at 3055. In short, State courts are free to determine the weight to be given to the proffered evidence. Eddings v. Oklahoma, 455 U.S. at 114 , 102 S.Ct. at 877 ; see Boyde v. California, 494 U.S. 370, 377 , 110 S.Ct. 1190, 119 , 108 L.Ed.2d 316 (1990) (“States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty’ ”). The constitutional prohibition is only against the wholesale exclusion of mitigating evidence. Eddings v. Oklahoma, 455 U.S. at 114 , 102 S.Ct. at 877 .

. In light of Eddings, Boyde, and Walton , I do not see how the Constitution is offended if the courts in Arizona fail to consider under the catch-all provision evidence tendered in mitigation which fails to show the defendant was significantly impaired under § 13-703(G)(1) at the time he killed, based on his voluntary intoxication, or took the life of another person as the result of substantial duress within the meaning of § 13-703(G)(2), since evidence below these statutory thresholds has little or no probative value.

*1089 I am aware that in Smith v. McCormick, this court found fault with the Montana courts’ treatment of mitigating evidence which did not establish the statutory mitigating circumstance of a “substantial” impairment, as well as an “extreme” mental condition. 914 F.2d at 1167 . The court in Smith stated that evidence which fell below either standard could nonetheless have some mitigating force particularly in combination with other evidence. Id. I believe Smith must be understood in context as a particular expression of dismay and distrust at the Montana sentencing court which altogether rejected certain mitigating evidence in clear violation of Lock-ett, and which failed to consider the collective weight of the mitigating evidence. Id. at 1165-1168 . I do not believe Smith compels re-sentencing where, as here, the record shows the sentencing court considered the proffered evidence in mitigation and found the evidence wanting as a matter of fact, particularly since there is no evidence in the record to suggest the sentencing court failed to understand its Constitutional duty to consider all of the evidence offered in mitigation or failed to consider the collective weight of the mitigating evidence. Cf. Smith v. McCormick, 914 F.2d at 1165 . In such a case, I believe federal habeas corpus review is limited to whether a rational factfinder could have found no mitigating circumstances to be present. Parker v. Dugger, — U.S. -, -, 111 S.Ct. 731, 740 , 112 L.Ed.2d 812 (1991) (citing Lewis v. Jeffers, 497 U.S. 764 , 110 S.Ct. 3092 , 111 L.Ed.2d 606 (1990)). Under this properly deferential standard, the Arizona sentencing court’s finding that petitioner had not proved any mitigating circumstance by a preponderance of the evidence easily withstands constitutional scrutiny.

But even if I were to agree with the Arizona Attorney General that Smith “is on all fours” with the present matter, 3 I believe the rule of Smith represents a “new rule” under Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), at least when applied to this case, and thus may not serve as the basis for relief in this habeas corpus proceeding. The majority states the rule in Smith was “dictated” by Lockett and Eddings , but both of those cases spoke to what mitigating evidence must be considered not to how that evidence must be considered. Saffle v. Parks, 494 U.S. at 490, 110 S.Ct. at 1261 . I believe Smith , to the extent it imposes a constitutional duty to consider the independent mitigating value of all evidence which falls below any statutory threshold — even if the threshold does not logically allow for a residual category of relevant mitigating evidence and even if the record shows the sentencing court otherwise fully considered the mitigating evidence under the statutory category — constitutes a. new rule. This rule, to say the least, would be “susceptible to debate among reasonable minds.” Butler v. McKellar, 494 U.S. 407, 415 , 110 S.Ct. 1212, 1214 , 108 L.Ed.2d 347 (1990). 4

I also believe the Arizona court’s careful consideration of the mitigating evidence compels the conclusion that any error was harmless beyond a reasonable doubt. On the record before this court, I am convinced that the Arizona trial court and Arizona Supreme Court would have separately and independently concluded death was an appropriate penalty for petitioner even if those courts were under a constitutional duty to consider the evidence of intoxication and duress under the catch-all provision for mitigating circumstances. See Demps v. Dugger, 874 F.2d 1385, 1390 *1090 (11th Cir.1989). The Arizona trial court understood its duty to consider all mitigating evidence offered by petitioner and simply was not moved toward leniency by that evidence. The record in this case, thus, stands in sharp contrast to the record in Smith , where the sentencing court failed to consider all mitigating evidence offered by petitioner, Smith v. McCormick, 914 F.2d at 1165 ; and the other cases where sentencing courts erred in evaluating the mitigating evidence. See, e.g., Eddings v. Oklahoma, 455 U.S. at 109 , 102 S.Ct. at 873 (sentencing court refused to consider defendant’s history as an abused child); Hitchcock v. Dugger, 481 U.S. 393, 398 , 107 S.Ct. 1821, 1824 , 95 L.Ed.2d 347 (1987) (trial court repeatedly instructed jury to consider only statutory mitigating circumstances, and record showed the trial court itself refused to consider proffered evidence of nonstatutory mitigating circumstances); Songer v. Wainwright, 769 F.2d 1488, 1489 (11th Cir.1985) (en banc) (sentencing judge stated that he did not consider nonstatutory mitigating evidence).

The majority also believes petitioner’s sentence of death cannot stand even if the sentencing court properly considered the mitigating evidence. The majority concludes that the Arizona Supreme Court failed to re-weigh the aggravating and mitigating circumstances after invalidating one aggravating circumstance and modifying another. Ante at p. 1081.

I do not understand the majority’s conclusion in this regard. If the sentencing court found no mitigating circumstances to be present, then there was nothing for the Arizona Supreme Court to reweigh. Walton v. Arizona, 497 U.S. at - n. 28, 110 S.Ct. at 3084 n. 28 (Blackmun J., dissenting). On the other hand, if the sentencing court concluded mitigating circumstances were present but were outweighed by the aggravating circumstances, as the majority’s reads the record, the Arizona Supreme Court clearly discharged its statutory and constitutional duty to reweigh the mitigating evidence after invalidating one aggravating circumstance and modifying another. The Arizona Supreme Court acknowledged that it was obligated to undertake an independent review, including an independent reweighing of the aggravating and mitigating circumstances. 661 P.2d at 1129, 1132-33 . The state supreme court stated it was reweighing consistent with its legal duty. Id. State courts are presumed to follow the law. Walton v. Arizona, 497 U.S. at -, 110 S.Ct. at 3057; Parker v. Dugger, — U.S. at -, 111 S.Ct. at 736 . Nothing in the record overcomes this presumption. 5

This case has traveled through the trial and appellate courts of Arizona and the federal system for thirteen years. Today’s holding adds a new rule for the courts of Arizona to follow, without justification in the Constitution and ultimately to no avail. The courts of Arizona, which carefully evaluated petitioner’s mitigating evidence, will now inform this court of what everyone else knows: In the judgment of the Arizona courts, the mitigating evidence offered by petitioner thirteen years ago, whether considered as statutory mitigating circumstances or under the catchall provision, simply did not call for leniency then and does not call for leniency now.

I respectfully dissent.

. The majority claims the sentencing court failed to consider the evidence concerning plaintiffs denial of guilt while under the effects of sodium amytal. Ante at 1079. A fair reading of the record, however, shows the court was aware of and considered this evidence. See supra at 1077. But even if the sentencing judge failed to consider the sodium amytal evidence (which petitioner presented just two weeks before the sentencing hearing), the court's oversight did not violate the constitution. A defendant has no constitutional right to appeal to the sentencer’s "residual doubt" about the correctness of the jury’s verdict. See Franklin v. Lynaugh, 487 U.S. 164, 172-74 , 108 S.Ct. 2320, 2326-28 , 101 L.Ed.2d 155 (1988) (plurality opinion); at 187-88, 108 S.Ct. at 2334-35 (concurring opinion) (1988). And contrary to the majority's claim, Godfrey v. Kemp, 836 F.2d 1557, 1559 (11th Cir.1988) does not make petitioner's sodium amytal evidence relevant mitigating evidence. In Godfrey , the Eleventh Circuit addressed a very different question, namely, whether an error in a jury instruction on intent (where the court instructed the jury to presume defendant had the intent) was harmless, where defendant presented evidence at trial that he could not recall the events surrounding the murder of his wife and mother-in-law, even after being administered sodium amytal. The Eleventh Circuit noted that this evidence was relevant to the issue of intent and concluded the instructional error was not harmless. I fail to see how Godfrey helps petitioner, who denied his guilt and asked the sentencing court to consider the sodium amytal evidence in direct contradiction of the jury’s verdict. Petitioner’s evidence doesn't show a lack of intent but a lack of remorse. Moreover, because petitioner did not present this argument in the Arizona courts, either at the time of sentencing or on direct appeal, we should not consider it on collateral attack.

. The Arizona Supreme Court reached a different conclusion in State v. McMurtrey, 136 Ariz. 93 , 664 P.2d 637 (1983), where the defendant presented psychiatric testimony that he suffers from depression and an anti-social personality. In McMurtrey, the court held that the sentencer must consider the mitigating effect, if any, of this evidence even if it did not meet the statutory definition of an "impairment.” Id. 664 P.2d at 645-46 . The Arizona Supreme Court’s treatment of mitigating evidence in McMurtrey shows the high court of Arizona understands the reach of Lockett and Eddings as well as this court, and simply does not believe there is any meaningful category of mitigating evidence left over after a sentencing court determines the evidence of intoxication fails to show a significant impairment. I do not think the constitution requires or permits this court to substitute its judgment for the judgment of the Arizona Supreme Court in this respect.

. The majority places great weight on the fact that the Arizona Attorney General stated in oral argument that this case was "on all fours” with Smith. Ante at pp. 1079 and 1081. The Attorney General’s remarks, however, cannot substitute for a careful analysis of the record.

. If I am correct that Smith represents a new rule, at least when applied to the facts of this case, petitioner may not rely upon it since the new rule does not satisfy either of the two recognized exceptions under Teague (i.e., the new rule neither "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” nor represents a "watershed rule of criminal procedure ... without which the likelihood of an accurate conviction is seriously diminished.” Teague v. Lane, 489 U.S. at 311 — 13, 109 S.Ct. at 1075-77 ).

. The majority recognizes that the Arizona Supreme Court reviewed petitioner’s mitigating evidence, ante at 1083 n. 9, but does not accept the Arizona Supreme Court at its word when the court says it independently weighed this evidence. Rather than presume the Arizona Supreme Court followed its well-settled statutory and constitutional duty, the majority reaches a contrary conclusion based on the state supreme court's cursory description of the weighing process — as if the five justices on the state supreme court could address the mitigating evidence in one section of the opinion and then fail to consider the evidence during the weighing process. In so doing, the majority ascribes to the state courts an unnatural, mechanical approach to their consideration of the mitigating evidence, and imposes on those courts a duty to better articulate their analysis — without constitutional justification.