BRENNAN, J., dissenting 423 U.S. ject to commutation by the Governor, and the extent of his authority under the circumstances of this case, are questions of Tennessee law which were resolved in favor of sustaining the action of the Governor by the Tennessee Court of Criminal Appeals in Hodges v. State, supra. It was not the province of a federal habeas court to re-examine these questions. Respondents urge, in support of the result reached by the Court of Appeals for the Sixth Circuit, that their Fourteenth and Sixth Amendment rights to jury trial have been infringed by the Tennessee proceedings. We reject these contentions. A jury had already determined their guilt and sentenced them to death. The Governor commuted these sentences to a term of 99 years after this Court's decision in Furman v. Georgia, 408 U. S. 238 (1972). Neither Furman nor any other holding of this Court requires that following such a commutation the defendant shall be entitled to have his sentence determined anew by a jury. If Tennessee chooses to allow the Governor to reduce a death penalty to a term of years without resort to further judicial proceedings, the United States Constitution affords no impediment to that choice. Dreyer v. Illinois, 187 U. S. 71 (1902). Cf. Schick v. Reed, 419 U. S. 256 (1974). The motion of the respondents for leave to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Court of Appeals is MR. JUSTICE DOUGLAS would deny certiorari. Reversed. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting. I dissent on two grounds: first, because the Court errs in reading the record to include a final holding of the Court of Appeals declaring the commutations to be in 19 BRENNAN, J., dissenting valid; and, second, because if there were such a final holding, summary disposition of the question of the validity of the commutations certainly one of first impression in this Court is particularly inappropriate.1 That the "commutations" have not been finally declared invalid clearly emerges from the record of the proceedings in the District Court and in the Court of Appeals. The petition for habeas corpus alleged five errors by the state courts. Three (coerced confessions, prejudicial comments during voir dire, Hodge's claim under Bruton v. United States, 391 U. S. 123 (1968)) attacked respondents' convictions, the other two the sentences (invalid jury sentence and unconstitutional commutations). The District Court held that respondents had failed to exhaust state remedies on all of these issues except the alleged invalidity of the jury sentence; accordingly, the District Court issued a show-cause order "solely on the issue that the jury allegedly failed to specify the degree of murder in the verdicts." Hodges v. Rose, No. C-73442 (WD Tenn., Nov. 15, 1973). The State accordingly filed an answer dealing only with this issue, and the District Court decided only that issue, rejecting respondents' claim on the merits. This question was therefore the only claim that was ripe for appeal; specifically, there was no decision of the District Court on the constitutionality of the commutations that was or could have been the subject of respondents' appeal to the Court of Appeals.2 1 Neither of the decisions cited by the Court is apposite. Dreyer v. Illinois, 187 U. S. 71 (1902), held merely that the Due Process Clause of the Fourteenth Amendment does not bar executive exercise of sentencing powers. Id., at 84. Schick v. Reed, 419 U. S. 256 (1974), where the President reduced petitioner's death penalty to life imprisonment, was not a case where the death sentence had been judicially voided when the President acted. 2 The cases cited by the Court in which panels in the Sixth Cir BRENNAN, J., dissenting 423 U.S. Nevertheless, it is of course true that the initial opinion of the Sixth Circuit contains the following language: "[The] commutation followed by some eight days an order of the Tennessee Court of Criminal Appeals vacating the order imposing the death penalty and remanding the case to the trial court for punishment determination in the light of Furman v. Georgia, 408 U. S. 238 [(1972)], and for the reason that there were therefore no viable death sentences to commute, we hold the purported commutation and the concomitant imposition of committed [sic] sentences for terms of 99 years invalid." Hodges v. Rose, No. 74-1461 (CA6, Feb. 25, 1975). (Emphasis added.) The same opinion goes on to affirm the decision on the merits of the only question decided by the District Court, namely, the jury-sentence issue, and then observes that the State had confessed error on the exhaustion point. Accordingly, the judgment was "for further proceedings consistent herewith." This necessarily must have meant that the three constitutional attacks on the convictions cuit have upheld similar commutations in other cases, ante, at 21 n. 3, serve to substantiate my reading of the record. Judge Miller was a member of the panel in Smith v. Rose, No. 74-1753 (CA6, Nov. 15, 1974), and Judge Peck participated in Bowen v. Rose, No. 74-1087 (CA6, Mar. 19, 1974). Both judges were also on the panel in the instant case, and the alleged inconsistency among the panel decisions was noted in the State's petition for rehearing. The Court's implicit suggestion that these federal judges issued conflicting decisions, without explanation, indicates the inaccuracy of the Court's view of the record. Moreover, neither of the cited unpublished panel opinions explicitly states that the commutation being upheld was issued after a death sentence had been judicially voided. Parenthetically, the Sixth Circuit's Rule 11 prohibits citation of unpublished opinions. Am I to understand that this Court is not called upon to respect that prohibition? 19 BRENNAN, J., dissenting should be addressed on the merits by the District Court. The sua sponte comments on the commutations thus made no sense since that issue would never arise if the convictions were set aside on any of the three grounds. Not surprisingly, therefore, the State sought rehearing. The State dispositively argued, first, that the Sixth Circuit was precluded from addressing the commutation issue since the District Court had carefully confined its decision on the merits to the validity of the jury sentence. The State argued, second, that there had been no opportunity to argue the commutation question in the District Court and that no record had been made on the issue, and, third, the commutation issue had not been briefed in the Sixth Circuit. Fourth, and finally, the State argued what surely must have been crystal clearthat the commutation question would never be reached if respondents prevailed on their challenge to the validity of their convictions. True, as a good lawyer's would, the State's petition for rehearing challenged in any event the soundness of the statement that the commutations were invalid. But the relief sought on rehearing was excision of the language quoted above and remand “to the District Court for consideration of all issues." The Court of Appeals obviously recognized its error. The opinion on rehearing, while not deleting the whole statement, did delete the language emphasized above and left only the factual statement of what had occurred: "[The] commutation followed by some eight days an order by the Tennessee Court of Criminal Appeals vacating the [order imposing the] death penalty and remanding the case [to the trial court] for punishment determination in the light of Furman v. Georgia, 408 U. S. 238 [(1972)]." Hodges v. Rose, No. 74-1461 (CA6, June 10, 1975). Significantly the opinion on rehearing also squarely held BRENNAN, J., dissenting 423 U.S. that the District Court had erred in finding a failure to exhaust as to the commutation issue. On this record, therefore, the only proper disposition is denial of the petition for certiorari. At the least, we should vacate and remand to the Sixth Circuit for clarification of whether the validity of the commutations was addressed and decided. In any event, summary disposition of the issue of the validity of the commutations is strikingly inappropriate. There is no record in the lower courts on the commutation issue, because the District Court limited the habeas proceeding to the validity of the jury sentence. More importantly, the issue is one of first impression in this Court, and it surely merits briefing and oral argument. For example, I find troublesome the question whether (since there existed no viable death sentences to commute) the Governor's action should be treated as imposing the 99-year sentences without affording respondents constitutionally secured safeguards required when sentences are imposed. If the Governor had not acted, resentencing would have been by a jury at a proceeding highlighted by the usual safeguards, none of which applied to the Governor's action. The question is plainly not insubstantial; in Mempa v. Rhay, 389 U. S. 128 (1967), we held that constitutional safeguards (there the right to counsel) applied to the sentencing stage. Was the commutation in this case actually the sentencing stage since no death sentence existed to commute when the Governor acted? Also, the due process dimensions of the right to present evidence relevant to sentencing was left open in McGautha v. California, 402 U. S. 183, 218-220 (1971). If respondents were "sentenced" by the Governor, were they denied due process when not afforded that opportunity, even assuming that the Federal Constitution permits States to adopt executive in preference to |