Finality, Comity, and Retroactivity in Criminal Procedure: Reimagining the Teague Doctrine After Edwards v. Vannoy.

• Author: Ho, Jeffrey G.

Table of Contents Introduction I. Background on Federal Habeas Review and Retroactivity A. Development of the Teague Doctrine B. Retroactivity Through the Law of Remedies and Danforth II. The Finality Interest and the Point of Finality A. Traditional Rationales for the Finality Interest 1. The finality interest in criminal procedure 2. The finality interest in state collateral review B. Prospective Relief and the Wheeling Bridge Cases C. The Point of Finality and State Criminal Procedures III. The Comity Interest and Legitimate Reliance A. The Comity Interest in State Collateral Review B. Legitimate Reliance and State Avoidance of a Federal Right 1. Procedural default and the inadequate state ground 2. The nondiscrimination principle and the Testa line of cases C. Examples of State Discrimination Against Federal Rights IV. Reimagining the Teague Doctrine A. Redrawing the Retroactivity Line B. Teague s New-Law Doctrine and State Discrimination Against Federal Rights C. Retroactivity of the Ramos Rule Conclusion Introduction

In February 2020, the Supreme Court held in McKinney v. Arizona (1) that when mitigating evidence is not properly considered in a capital case, a state appellate court may conduct an independent review to reweigh the aggravating and mitigating evidence. (2) Though the Court's majority characterized the issue as narrow, (3) its rejection of McKinney's primary argument has sweeping implications for the Court's retroactivity jurisprudence. McKinney argued that when the Arizona Supreme Court granted independent review of his capital sentence in 2018, it necessarily reopened direct review (4) of his criminal case. (5) Thus, because his case was on direct review, current law applied, which required that the reweighing of aggravating and mitigating circumstances for his capital sentence be done by a jury, not a judge, and certainly not the Arizona Supreme Court. (6)

Ordinarily, if a case is on direct review, a court is bound to apply constitutional law as it currently stands, not the law as it stood at the time of trial, conviction, or sentencing. This principle derives from Griffith v. Kentucky, in which the Supreme Court held that the Constitution requires that all constitutional rules apply to cases on direct review. (7) Two years later, in Teague v. Lane, the Court distinguished direct and collateral review, holding that "new" constitutional rules do not apply to cases on collateral review. (8) But Teague only precludes retroactive application of "new" constitutional rules, so "old" constitutional rules still apply on collateral review. (9) And even if the case is on collateral review and the constitutional rule is new, the rule may apply retroactively if it is a substantive rule that "alter[s] 'the range of conduct or the class or persons that the law punishes."' (10) Teague also described a second exception--'"watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." (11) But in May 2021, the Supreme Court acknowledged in Edwards v. Vannoy that the "watershed exception is moribund" and that new procedural rules, besides the right to counsel recognized in Gideon v. Wainwright, (12) will never satisfy the watershed exception. (13) The Court has justified this restrictive approach to retroactivity on collateral review compared to direct review by emphasizing comity, respect for the judicial process of the state courts, and finality, the closure a judgment of conviction is supposed to bring. (14)

In McKinney, the petitioner argued that the Supreme Court's decisions in Ring v. Arizona and Hurst v. Florida, (15) decided after direct review of his case had concluded but while collateral review was ongoing, should nonetheless apply to him under Griffith because his successful habeas petition had reopened his sentence and, with it, direct review. (16) As Justice Ginsburg's dissent highlighted, the key question was whether "McKinney's case [was] currently on direct review, in which case Ring applies, or on collateral review, in which case Ring does not apply." (17) The Court, in a majority opinion by Justice Kavanaugh, rejected McKinney's argument, reasoning that the Arizona Supreme Court itself characterized the independent review as a collateral proceeding and that the U.S. Supreme Court could "not second-guess the Arizona Supreme Court's characterization of state law.... As a matter of state law, the reweighing proceeding in McKinney's case occurred on collateral review." (18) But the Court also reserved the option of overruling a state definition of collateral review that it finds particularly egregious. (19)

The Court's decision in McKinney adds yet another rule to its retroactivity jurisprudence and the complicated Teague doctrine. (20) The retroactivity test is not only complex (21) but also requires odd line drawing and produces disparate impacts on similarly situated individuals. As a simple illustration, imagine that McKinney had been convicted in a state that characterized the 2018 independent review as a resentencing procedure and thus reopened direct review of his criminal case. Under the Court's reasoning in McKinney, he would be entitled to retroactive application of Ring and Hurst and thus resentencing by a jury instead of a state appellate court. Commentators have criticized the Teague approach for doctrinal inconsistency, arguing that the new-rule-old-rule distinction is irreconcilable with the common law theory that judges interpret the law rather than create it; (22) that the treatment of Teague as a threshold question inhibits the development of constitutional law because adjudication of the merits of a claim would constitute an advisory opinion; (23) and that Teague fails to address the complex relationship between factual innocence and sentencing innocence. (24)

Powerful as these criticisms of Teague are, they remain for the most part internal in the sense that they do not question the underlying premises of finality and comity that justify the Court's strict approach to retroactivity. In this Note, I argue that a wholesale reassessment of the Teague bar is needed. At its core, deciding whether to apply a constitutional rule retroactively entails a simple remedial question (25): Do the interests in redressing constitutional violations outweigh the costs to finality and comity of reopening a final judgment? This Note deeply reexamines these two interests: finality (26) and comity. (27) After comparing related finality and comity doctrines, as well as the relevant scholarly literature, I argue that the current Teague doctrine overvalues both interests. A reimagining of the retroactivity framework should thus begin by reconsidering the roles of finality and comity.

In the past year, the Supreme Court once again grappled with the Teague doctrine and ultimately walked back the thirty-year-old holding. In Ramos v. Louisiana, decided just two months after McKinney, the Court held that the Sixth Amendment requires a unanimous verdict to convict a defendant of a serious criminal offense in state criminal proceedings. (28) Under Griffith, Ramos applies retroactively to all serious criminal cases on direct appeal in Oregon and Louisiana--the two states that previously did not require unanimity. (29) But a year later, in Edwards v. Vannoy, the Supreme Court held that the Ramos rule, like other criminal-procedure rules that came before it, would not apply retroactively on federal collateral review. (30) The Court went further, acknowledging that the previously recognized watershed exception in Teague was "moribund" and announcing that new procedural rules will never apply retroactively on federal collateral review. (31) This recent change of course underscores just one of the many flaws in continuing to rely on Teague as the touchstone of the Court's retroactivity jurisprudence.

This Note proceeds in four parts. In Part I, I begin with a brief history of the Court's development of retroactivity law in habeas corpus cases. I also discuss in depth the remedial theory of retroactivity and its acceptance by the Court in Danforth v. Minnesota, (32)

In Part II, I examine the finality interest and the point of finality in state criminal proceedings. To begin, I detail and respond to the traditional rationales offered to support the finality interest in our legal system--that it preserves monetary and institutional resources and that it is necessary for deterrence and rehabilitation. I suggest that while these rationales merit consideration, they are substantially less compelling in criminal procedure and state collateral proceedings. In particular, I argue that the reopening of final judgments may actually be a necessary check on a criminal-justice system that in recent years has come under heavy scrutiny for convicting innocent defendants, perpetuating racist institutional structures, and contributing to mass incarceration. (33) Then, after examining the Rule 60(b) motion and the Wheeling Bridge line of cases, (34) I argue that the finality interest in a criminal conviction is similar to the finality interest in modifying injunctive relief, and thus it should be sensitive to changes in the law. Furthermore, I conduct a substantial critique of how state collateral review fits into the larger system of postconviction review. Lastly, I suggest that the Court's current approach, drawing the retroactivity line at the conclusion of direct review, has led to widespread inconsistency.

In Part III, I shift to an examination of the comity interest. First, I develop the argument explicitly recognized by the Supreme Court in Danforth--that comity interests are nonexistent in intrasystem review, such as state collateral review. Next, after examining related comity doctrines, such as the inadequate-state-ground doctrine and the Testa v. Katt (35) line of cases about the nondiscrimination principle, I argue that the Teague new-rule...