The future of Teague retroactivity, or "redressability," after Danforth v. Minnesota: why lower courts should give retroactive effect to new constitutional rules of criminal procedure in postconviction proceedings.

• Author: Lasch, Christopher N.

Although the Supreme Court's 1989 decision in Teague v. Lane generally prohibits the application of new constitutional rides of criminal procedure in federal habeas review of state court judgments, the Court's 2008 decision in Danforth v. Minnesota frees state courts from Teague's strictures. Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions.

In this Article, I examine the doctrinal underpinnings of the Court's retroactivity jurisprudence, and propose that state courts and the lower federal courts abandon the Supreme Court's experiment with nonretroactivity. Affording retroactive application to new constitutional rules in state and federal postconviction proceedings promotes fairness to litigants and uniformity in the development of federal constitutional criminal doctrine. Perhaps most importantly, a rule of retroactivity permits the lower state and federal courts to regain a role in the development of constitutional doctrine that had previously been constricted, first by Teague and then by the Antiterrorism and Effective Death Penalty Act. My examination of the Danforth opinion leads me to believe that the foundations upon which Teague was built are now crumbling. Danforth marks a shift in the Court's conception of the function of habeas corpus which portends well "for the reinvigoration of a constitutional dialogue among the lower courts and an increased role in constitutional development for the lower federal courts.

INTRODUCTION PROLOGUE: POSTCONVICTION PROCEDURES AS THEY EXIST TODAY I. HISTORY OF THE SUPREME COURT'S CRIMINAL RETROACTIVITY JURISPRUDENCE BEFORE DANFORTH A. Brown v. Allen and the Expansion of Federal Habeas Review B. The Birth of Nonretroactivity: Linkletter v. Walker and Professor Mishkin's Critique C. Expansion of the Linkletter Nonretroactivity Doctrine D. Justice Harlan' s Criticism of the Stovall-Linkletter Doctrine E. Overthrow of the Linkletter-Stovall Regime: Griffith v. Kentucky and Teague v. Lane F. Criticism of Teague II. THE DANFORTH DECISION: TEAGUE DOES NOT BIND THE STATE COURTS A. The Key Notes Struck by the Majority Opinion B. The Key Notes Struck by the Dissent C. Important Questions Left Open by Danforth III. THE FUTURE OF RETROACTIVITY IN STATE POSTCONVICTION PROCEEDINGS A. The Court's Return to Blackstone B. Prospectivity and the Problem of Equality. C. The Nature of Judicial Review D. A Voice for State Courts in the Development of Federal Constitutional Criminal Procedure E. Retroactive Application of New Rules in Postconviction Proceedings Ensures Uniformity F. Finality, the Only Teague Concern that Remains 1. The Value of "Finality" in State Postconviction Proceedings 2. Benefits of Retroactivity on Collateral Review Outweigh Finality Concerns 3. Addressing Finality Through Procedureal Mechanisms Other than Nonretroactivity G. Problems in Administration Avoided by the Return to Retroactivity IV. THE FUTURE OF RETROACTIVITY IN FEDERAL POSTCONVICTION PROCEEDINGS V. THE FUTURE OF RETROACTIVITY IN FEDERAL HABEAS CORPUS REVIEW OF STATE-COURT JUDGMENTS CONCLUSION INTRODUCTION

Beginning in 1965, the Supreme Court's decisions on the retroactive application of new constitutional rules of criminal procedure have presented a "confused and confusing" (1) jurisprudence. The Court's recent decision in Danforth v. Minnesota, (2) however, represents a significant and promising break with the past. Danforth makes clear the Court's retroactivity rules are binding only on federal courts considering state prisoners' habeas corpus petitions. State postconviction courts are explicitly declared free to disregard the Court's jurisprudence. Further, Danforth leaves open the possibility that federal courts considering the postconviction claims of federal prisoners may be similarly unbound. (3)

After providing a brief overview of the processes of postconviction review, this Article examines the Danforth decision and its antecedents, (4) and proposes that among the numerous possible retroactivity rules lower courts may adopt after Danforth, a rule of retroactivity should be preferred. There are several reasons why lower courts--both state (5) and federal (6)--should adopt a rule of retroactive application of new constitutional rules of criminal procedure in postconviction cases.

First, a rule of general retroactivity avoids the unfairness inevitably attendant to non-retroactive application of judicial decisions, ensuring that similarly situated litigants are treated equally. Second, a rule of general retroactivity will allow the lower courts--state and federal to continue to participate in important doctrinal development. The development of constitutional criminal doctrine has historically depended on lower courts' ability to expound on the meaning of constitutional provisions, but has been hindered by the Court's retroactivity jurisprudence and legislation limiting federal habeas review of state court judgments. A rule of retroactivity will preserve a role for the lower courts in doctrinal development. Third, a general rule of retroactivity promotes unifomaity in the application of constitutional rules of criminal procedure, whereas adoption of retroactivity rules that look to the nature of the constitutional rule at issue (as the Supreme Court's retroactivity rules have) will lead to disuniformity that threatens the supremacy of federal law.

In reaching these conclusions, I take into account the nature and function of state and federal postconviction proceedings, and particularly the ways in which they differ from the nature and function of federal habeas review of state court judgments. I also consider whether interests in the finality of criminal convictions outweigh the benefits to be served by a retroactivity regime, and conclude they do not.

After evaluating the impact of Danforth on the lower courts in postconviction proceedings both state and federal, I turn to a brief examination of how Danforth may portend change for the future of the Court's retroactivity doctrine in federal habeas corpus proceedings reviewing state court judgments. (7) I conclude that Danforth offers great hope for a return to a more constructive model of state-federal court "dialogue" on constitutional rules, replacing the paternalistic model of habeas review which held the threat of habeas relief as a punishment to be delivered to state courts who failed to "toe the constitutional line" set by the federal courts. Additionally, it appears the lower federal courts may, on the logic of the Danforth decision, move away from use of the retroactivity inquiry as a threshold question, which will allow lower federal courts to reintroduce themselves to the constitutional dialogue in federal habeas proceedings.

PROLOGUE: POSTCONVICTION PROCEDURES AS THEY EXIST

To better understand the issues surrounding retroactivity in state and federal postconviction proceedings, it is critical to keep in mind the structure and functions of those proceedings as they exist today.

The typical lifespan of a criminal case originating in state court can be divided into eleven stages: (1) trial; (2) direct appeal as of right, (8) usually to an intermediate-level appellate court (9); (3) discretionary appeal within the state court system, usually to the state's highest court; (4) petition for writ of certiorari in the United States Supreme Court; (5) petition for postconviction review (sometimes called "state habeas corpus" (10)), usually entertained by a trial-level state court; (6) direct appeal from the denial of postconviction relief, often as a matter of right, and usually to an intermediate-level appellate court (11); (7) discretionary appeal within the state court system, usually to the state's highest court; (8) petition for writ of certiorari in the United States Supreme Court (12); (9) petition for writ of habeas corpus pursuant to 28 U.S.C. [section] 2254 ("federal habeas corpus"), in United States District Court; (10) appeal to the United States Court of Appeals; (13) and (11) petition for writ of certiorari in the United States Supreme Court.

The first four stages of a state criminal case's typical lifespan are the "direct review track," the next four are the "state postconviction track," and the final three stages are the "federal habeas corpus track." All of this is depicted in Figure 1.

By contrast, the typical lifespan of a criminal case originating in federal court only consists of six stages: (1) trial; (2) direct appeal to the United States Court of Appeals; (3) certiorari review by the United States Supreme Court; (4) a motion to set aside, vacate, or correct sentence pursuant to 28 U.S.C. [section] 2255, in the United States District Court; (14) (5) direct appeal to the United States Court of Appeals; (15) and (6) certiorari review by the United States Supreme Court. The first three stages are the "direct review track," and the last three are the "federal postconviction track," as depicted in Figure 2.

In practice, significant deviations from the typical can occur, in the form of interlocutory appeals, ancillary litigation in the form of writs of prohibition or mandamus, petitions for rehearing, successive postconviction petitions, successive federal habeas corpus petitions, and the like. Yet, for purposes of a general discussion about how the state and federal postconviction review processes function, and how they ought to function, these typical lifespans will suffice.

The critical difference between state and federal criminal cases lies in the existence of extra tiers of review of state cases. As can be seen from Figure 1, state criminal cases are subject to federal court review in two ways--through certiorari to the United States Supreme Court from...