“When the Supreme Court reviews the conduct of government officials in a criminal case, the legal rule it promulgates will obviously apply to all similar government conduct arising after the date of the decision otherwise the decision would be nothing but an advisory opinion. But an important question is whether the legal rule should also be applied to government conduct occurring before the date of the decision. The question of retroactive application is one of competing policies and interests.”
he general rule is that new rules of constitutional interpretation, those not 'dictated by precedent existing at the time the defendant's conviction became final'1 2 will not be applied.13
However, [a] new rule applies retroactively in a collateral proceeding only if
For several years the Supreme Court has struggled with the issue of when criminal defendants should be given the benefit of rules of criminal proce dure which were established after their trials.' The Court started this debate in Linkletter v. Walker by declining to apply the exclusionary rule of Mapp Ohio3 retroactively to cases on habeas corpus review.4 Finding that "the Constitution neither prohibits nor requires retrospective effect,"5 the Link letter Court held that "though [a Mapp violation] might be fundamental it is not of the nature requiring us to overturn all final convictions based upon it."6
Following the Linkletter decision, a divided Court struggled with retro activity analysis and produced a series of controversial decisions.7 The Court discarded the distinction between direct and collateral appeals8 and for a period of years applied a three part balancing test implied by Linkletter.9 During this time Justice Harlan emerged as one of the strongest critics of the Linkletter test. In several dissenting opinions he argued for a new standard which used the procedural distinctions among defendants as the primary means for determining retroactivity.10 In 1987, the Supreme Court partially overruled Linkletter and applied Harlan's retroactivity analysis to defendants on direct review.11 Following that decision the treatment of habeas defendants remained uncertain.12 However, last term the Court completed the recent overhaul of retroactivity analysis. In Teague v. Lane13 a plurality of the Court extended a modified form of the Harlan approach to all retroactivity cases.14 A few weeks later in Penry v. Lynaugh15 the Court extended the new retroactivity analysis to habeas death penalty cases.
In Allen v. Hardy, the Court held that Batson constituted an "explicit and substantial break with prior precedent" because it overruled a portion of Swain. 478 U. S., at 258. Employing the retroactivity standard of Linkletter v. Walker, 381 U. S. 618, 636 (1965), the Court concluded that the rule announced in Batson should not be applied retroactively on collateral review of convictions that became final before Batson was announced. The Court defined final to mean a case " `where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in' Batson . . . ." 478 U. S., at 258, n. 1 (citation omitted).
…
Petitioner candidly admits that he did not raise the Swain claim at trial or on direct appeal. Brief for Petitioner 38-39. Because of this failure, petitioner has forfeited review of the claim in the Illinois courts. "It is well established that `where an appeal was taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those that could have been presented but were not are deemed waived.' " People v. Gaines, 105 Ill. 2d 79, 87-88, 473 N. E. 2d 868, 873 (1984) (citation omitted), cert. denied, 471 U. S. 1131 (1985). The default prevents petitioner from raising the Swain claim in collateral proceedings under the Illinois Post-Conviction Hearing Act, Ill. Rev. Stat., ch. 38, ¶ 122-1 et seq. (1987), unless fundamental fairness requires that the default be overlooked. People v. Brown, 52 Ill. 2d 227, 230, 287 N. E. 2d 663, 665 (1972)…. Under Wainwright v. Sykes, 433 U. S. 72, 87-91 (1977), petitioner is barred from raising the Swain claim in a federal habeas corpus proceeding unless he can show cause for the default and prejudice resulting therefrom. See Engle v. Isaac, supra, at 113-114, 117, 124-135 (applying procedural default rule to claim that had never been raised in state court).
…In Griffith v. Kentucky, 479 U. S. 314 (1987), we rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced, and adopted the first part of the retroactivity approach advocated by Justice Harlan. We agreed with Justice Harlan that "failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." 479 U. S., at 322.
…
Justice Harlan identified only two exceptions to his general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Mackey, 401 U. S., at 692. Second, a new rule should be applied retroactively if it requires the observance of "those procedures that . . . are `implicit in the concept of ordered liberty.' " Id., at 693 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937) (Cardozo, J.)).
We find these criticisms to be persuasive, and we now adopt Justice Harlan's view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.
In determining whether a new rule applies to cases on collateral review, the Court must apply the framework outlined by the plurality opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Generally, under Teague, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S. at 310, 109 S.Ct. 1060.
Two categories of decisions fall out-side of the bar on retroactivity for procedural rules. Welch, 136 S.Ct. at 1264. The first category is composed of substantive rules, which generally apply retroactively. Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)). The second category includes 845*845 new "watershed rules of criminal procedure," a limited category of procedural rules that "implicat[e] the fundamental fairness and accuracy of the criminal proceeding." Id. (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990)). See also O'Dell v. Netherland, 521 U.S. 151, 167, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) as an example of a "watershed rule," which was so essential to the fairness of a proceeding that it altered the understanding of bedrock procedural elements).
Normally, new rules of criminal procedure do not apply retroactively. However, in Teague v. Lane, 489 U.S. 288 (1989), the Court made an exception for “watershed” rule changes. Since then, however, the Court had never found a rule change that passed muster. In Edwards v. Vannoy, Thedrick Edwards was found guilty of certain felonies by non-unanimous juries in state court, and after his regular appeals failed and his conviction was finalized, he filed a habeas corpus petition, arguing that his conviction should be overturned because his jury was not unanimous. While the petition was pending, the Court decided Ramos v. Louisiana, 590 U.S. ___ (2020), which held that juries needed to be unanimous after all, overturning prior precedent. Edwards then argued that the rule in Ramos was retroactive under Teague, as a new “watershed” rule.
The Court, in a 6-3 decision by Justice Kavanaugh, rejected Edwards’ argument, and further held that the “watershed exception” in Teague was an “empty promise” of no further vitality. The majority surveyed all the prior decisions where the Court declined to grant retroactivity, including seminal cases like Batson v. Kentucky, 476 U.S. 79 (1986) and Mapp v. Ohio, 367 U.S. 643 (1961), and decided that if those rule changes were not sufficiently “watershed,” then none could be. Justice Thomas, joined by Justice Gorsuch, filed a concurrence arguing that the case could also be resolved under the text of the Antiterrorism and Effective Death Penalty Act of 1996, which also does not permit retroactive application of federal law to overturn state convictions. Justice Gorsuch, joined by Justice Thomas, filed another concurrence explaining the history of habeas corpus writs and how rejecting Teague fits in line with the original understanding of how that writ functions. Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, arguing that the decision in Ramos “fits to a tee Teague’s description of a watershed procedural rule.”
A link to the decision is here: https://www.supremecourt.gov/opinions/20pdf/19-5807_086c.pdf
Under the retroactivity framework set forward by the Court’s previous decisions, Justice Kavanaugh addressed the retroactivity of Ramos in two steps: First, did Ramos establish a new rule of criminal procedure or apply a rule that followed from settled precedent?
Second, if Ramos did establish a new rule of criminal procedure, did it qualify as a watershed exception to the general rule that new rules of criminal procedure do not apply retroactively on collateral review?
Justice Kavanaugh first concluded that the Court’s decision in Ramos introduced a new rule of criminal procedure, rather than followed from settled precedent.
The Court devoted relatively little space to this point, as the Ramos Court itself had acknowledged that it was overruling its precedent.
In so doing, Justice Kavanaugh rejected Edwards’s argument that the Ramos rule was a settled rule because it followed directly from the original meaning of the Sixth Amendment.
Justice Kavanaugh then asked if the Ramos rule was a “watershed rule[]” that applied retroactively.
Justice Kavanaugh characterized Teague’s watershed exception as “extremely narrow” and applicable only when the new rule disturbs the Court’s bedrock view of fairness.
Justice Kavanaugh then noted that since Teague, not a single new procedural rule had been found to fall within the exception’s scope, including those announced in Mapp v. Ohio, Batson v. Kentucky,
and Miranda v. Arizona.
Comparing Ramos to the Court’s other criminal procedure cases, Justice Kavanaugh concluded that Ramos failed to meet Teague’s high standard.
However, rather than stop at the rule of Ramos, the majority’s opinion went a step further and declared the watershed exception under Teague completely foreclosed. In short, “new procedural rules do not apply retroactively on federal collateral review.”
Justice Kavanaugh stated that it would be unfair to continue encouraging hope of retroactive application of new procedural rules when such hope consistently failed to materialize in practice.
He also discounted any reliance interests in the existence of the exception.
The history of the incorporation of the writ of habeas corpus39 into the
U.S. Constitution through the Suspension Clause and the history of federal habeas review are well-documented,40 as is the Court’s retroactivity jurisprudence.41 In this Part, instead of providing an extended account of this history, I focus on key developments in federal habeas corpus and the Court’s related retroactivity jurisprudence—along with relevant scholarly commentary—that form the foundation of my arguments in Parts II, III, and IV.
In the United States, the Judiciary Act of 1789 first created statutory authorization for federal habeas corpus but failed to define the substantive scope of the writ.42 The Supreme Court originally held that criminal defendants could file federal habeas corpus petitions only to challenge the
jurisdiction of the courts that rendered their convictions.43 But during Reconstruction, Congress, mistrustful of state courts, passed the Habeas Corpus Act of 1867 and extended federal habeas jurisdiction to include the detention of state prisoners,44 but federal habeas review of state court judgments remained limited to jurisdictional challenges.45 Through the late nineteenth century and early twentieth century, the Supreme Court gradually softened this limitation and recognized additional claims encompassed by the writ of habeas corpus.46 Consequently, in 1915, in Frank v. Mangum, the Supreme Court affirmed the denial of the writ to the petitioner but acknowledged that habeas relief included a remedy for deprivations of due process.47
In 1953, the Supreme Court further departed from the original limitations on habeas corpus in its landmark decision Brown v. Allen, which authorized federal courts to review federal constitutional claims previously decided by state courts.48 In Brown, the Supreme Court resolved the merits of two cases where state criminal defendants had previously fully litigated the merits of
their constitutional claims in state courts.49 It thus opened the door to broad federal relitigation of issues previously adjudicated in state criminal proceedings. Around the same time, the Court also began to interpret the Fourteenth Amendment to incorporate most of the amendments in the Bill of Rights against the states, including in the landmark criminal-procedure case Mapp v. Ohio, which held that the exclusionary rule applies to the states.50 As a result, new constitutional obligations became enforceable against state governments, creating a path for convicted defendants to allege that they were imprisoned without due process and thus unconstitutionally held.
Between 1953 and 1965, the Supreme Court did not truly grapple with the issue of retroactivity in criminal proceedings, instead generally construing all constitutional errors—even violations of new constitutional rules that had been decided after a criminal defendant’s conviction had reached the point of finality—as warranting federal habeas relief.51 Despite the new opportunities for constitutional claims in the wake of the Supreme Court’s incorporation decisions throughout the 1950s and 1960s, the Court continued its full retroactivity approach until 1965, applying new constitutional rules of criminal procedure to all cases on federal habeas review.52 The consequences for finality and comity, and the accompanying logistical nightmare, came to a head in 1965 when the Supreme Court was confronted with the question of whether Mapp should apply in federal habeas proceedings, a decision that had the potential to reopen “thousands” of final state judgments.53
In Linkletter v. Walker, the Court decided to adopt a case-by-case approach to the retroactive effect of new constitutional rules, one that examined “the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.”54 The Court applied this test to Mapp and determined that the rule could not be applied retroactively to decisions that had become final before the Mapp decision.55
The critical response to Linkletter was swift and included an influential critique from Paul Mishkin, who cautioned that the “general power of prospective limitation” relied upon in Linkletter clashed directly with Blackstone’s “declaratory theory” of adjudication56 and could eliminate the incentive for attorneys to advocate for changes in the law.57
In the decades that followed, the scholarly criticism of the Linkletter standard compounded as the test resulted in widely inconsistent results.58 For instance, after Linkletter, the Court held that one new rule should be applied to all cases on direct review,59 another new rule to all cases in which trial had not yet started,60 another new rule to all cases in which tainted evidence had not yet been introduced at trial,61 and other new rules to only future cases.62 In a pair of influential opinions in Desist v. United States and Mackey v. United States, Justice Harlan questioned whether the decisions after Linkletter “may properly be considered the legitimate products of a court of law, rather than the commands of a super-legislature.”63 In his revised approach to retroactivity, he suggested that new constitutional rules should always apply retroactively to cases on direct review but generally should not apply to cases on collateral review.64 But he suggested two exceptions to the general bar on retroactivity
in collateral review: (1) substantive due process rules;65 and (2) procedural rules that are “implicit in the concept of ordered liberty.”66
Over fifteen years later, the Supreme Court finally adopted Justice Harlan’s approach in Griffith v. Kentucky and Teague.67 In Griffith, the Supreme Court addressed the question of whether its decision in Batson v. Kentucky68 should apply retroactively to cases on direct review.69 Writing for the majority, Justice Blackmun explicitly recognized Justice Harlan’s approach as his inspiration and held that as a constitutional matter, all new constitutional rules should apply retroactively to cases on direct review.70 Justice Blackmun provided two primary explanations for the Court’s holding. First, hearkening back to Blackstone’s declaratory theory,71 he explained that the Court, “[u]nlike a legislature . . . do[es] not promulgate new rules of constitutional criminal procedure on a broad basis.”72 And second, he reasoned that disparate application of new rules would violate the principle of similar treatment for similarly situated defendants.73
The Court completed its embrace of Justice Harlan’s approach two years later in Teague, which addressed the question of whether a fair-cross-section
challenge during jury selection could be raised on collateral review.74 In a plurality opinion,75 Justice O’Connor adopted Justice Harlan’s proposal in Mackey with only a slight modification.76 Justice O’Connor renounced the Linkletter standard and agreed with Justice Harlan that new constitutional rules should generally not be applied retroactively on collateral review, with two exceptions.77 The first exception was effectively identical to Justice Harlan’s exception for substantive due process rules,78 but the second exception was narrower than Justice Harlan’s exception for new procedural rules that are “implicit in the concept of ordered liberty.”79 Instead, Justice O’Connor’s second exception was limited to “watershed rules of criminal procedure” that also implicate the accuracy of the conviction.80 The Court justified this restrictive approach to retroactivity on collateral review as compared to direct review because of two interests: comity and finality.81
Seven years later, in 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA),82 which has dramatically transformed federal habeas practice.83 As a practical matter, AEDPA is often more limiting than Teague because it generally bars federal habeas review of state court determinations and only allows for two bases of adjudication. AEDPA permits federal habeas review of state court decisions that are “contrary to,” or an
“unreasonable application of, clearly established” Supreme Court precedent.84 AEDPA also permits federal habeas review of state judgments that are “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”85 The scholarly criticism of AEDPA is widespread.86 But because AEDPA is a statutory bar to federal habeas petitions, rather than a constitutional limit on retroactivity, this Note discusses the effects of AEDPA only when relevant to the retroactivity analysis.
Lastly, in May 2021, the Supreme Court altered the core Teague framework for the first time in Edwards v. Vannoy.87 In Edwards, the Court held that the constitutional rule announced in Ramos v. Louisiana—that the Sixth Amendment requires a unanimous verdict to convict a defendant of a serious criminal offense in state criminal proceedings88—would not apply retroactively on federal collateral review.89 After discussing previous criminal- procedure rules that were not applied retroactively on federal habeas review, including those announced in Duncan v. Louisiana,90 Crawford v. Washington,91 and Batson v. Kentucky,92 the Court closed the door on the Teague “watershed exception.”93 Finding that no new constitutional rule of criminal procedure could ever reach watershed status, the Court held that “[c]ontinuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.”94 Thus, the Teague watershed exception for criminal-procedure rules—articulated by Justice Harlan and narrowed by Justice O’Connor—was eliminated altogether.
Within two years of Teague, Richard Fallon and Daniel Meltzer published an influential article that advocated for a reframing of the retroactivity question.95 Fallon and Meltzer proposed that the retroactivity question is better understood through the law of remedies rather than as a choice-of-law question.96 They argued that the “novelty” of a new law modulates the scope of the remedy.97 Drawing parallels to other legal doctrines like official immunity, Fallon and Meltzer recognized that the Constitution occasionally tolerates situations where victims of constitutional violations do not receive effective redress if the new constitutional rule is particularly novel.98
Decades later, in 2008, the Supreme Court implicitly endorsed and accepted Fallon and Meltzer’s reframing of the retroactivity question in Danforth v. Minnesota.99 In Danforth, the Court, in a 7–2 opinion authored by Justice Stevens, held that Teague did not bind state collateral proceedings and that states may choose to apply new constitutional rules retroactively even when federal courts would be otherwise barred from doing so under Teague.100 In his opinion, Justice Stevens recast the issue of retroactivity as a question of the redressability of new-rule violations.101 In particular, in a move that appeared to conflict with Justice O’Connor’s statement in Teague that “[r]etroactivity is properly treated as a threshold question,”102 Justice Stevens wrote: “It is important to keep in mind that our jurisprudence concerning the ‘retroactivity’ of ‘new rules’ of constitutional law is primarily concerned, not with the question whether a constitutional violation occurred, but with the availability or nonavailability of remedies.”103 Treating retroactivity as a
threshold question, consistent with Justice O’Connor’s older approach, would allow the retroactivity question to be resolved before arriving at the merits of whether a constitutional violation occurred. By contrast, approaching retroactivity through the law of remedies means that the question of whether to apply a constitutional rule retroactively is not a question of whether a constitutional violation occurred but whether retroactivity is the proper remedy for such a violation.
Several years after Danforth, in 2016, the Supreme Court held in Montgomery v. Louisiana that the rule in Miller v. Alabama—which prohibited mandatory life sentences without parole for juveniles as violating the Eighth Amendment104—was a new substantive constitutional rule that should apply retroactively on collateral review.105 Perhaps more relevant to the retroactivity analysis, the Supreme Court initially addressed a jurisdictional issue and clarified that the first Teague exception imposes a constitutional obligation on state collateral proceedings to grant retroactive effect to new substantive due process rules.106 Like in Danforth, the Court did not explicitly cast the retroactivity question in terms of the law of remedies, but the Court’s reasoning and explanation in Montgomery is best understood with the backdrop of retroactivity as a remedy rather than choice-of-law question.107
This framing of retroactivity through the law of remedies—developed by Fallon and Meltzer and recognized in Danforth—provides a starting point for restructuring the Teague doctrine. At its core, retroactivity is not about
applying new law to old judgments—that happens all the time—but rather about whether and under what circumstances it is appropriate to reopen an old judgment so as to apply the current understanding of the law. The difference between these two approaches may at first blush seem merely formal, but there are profound implications for how comity and finality factor into the analysis and, ultimately, when retroactivity will apply.