Habeas corpus - retroactivity of post-conviction rulings: finality at the expense of justice.

AuthorFinley, Timothy T.
PositionSupreme Court Review - Case Note

    In Gilmore v. Taylor,(1) the United States Supreme Court held that the Seventh Circuit's ruling in Falconer v. Lane,(2) which declared unconstitutional the Illinois Pattern Jury Instructions for murder and voluntary manslaughter, could not be applied retroactively to a state prisoner whose conviction became final before Falconer was decided.(3) Applying Teague v. Lane,(4) the Court determined that the Falconer holding, which invalidated jury instructions practically identical to those given at respondent Kevin Taylor's trial, could not be applied retroactively to Taylor's case because it announced a "new rule" that was not "dictated by precedent" existing at the time of Taylor's trial.(5)

    This Note examines the Court's decision in Gilmore and concludes that the Court adopted an unreasonably broad definition of what constitutes a new rule under Teague. The Court's application of Teague suggests that any time a federal habeas petitioner makes a claim that is not directly supported by precedents that are precisely on point, that petitioner asks for the benefit of a new rule that cannot be applied retroactively.6 In other words, Gilmore has made it effectively impossible for a prisoner to bring a successful federal habeas claim unless the state imprisoned him in open defiance of constitutional precedents that were on point at the time of conviction. As a result, the Court has practically eliminated the doctrine of federal habeas corpus as Congress envisioned it and wiped away at least forty years of precedent. With the exception of the few criminal cases heard on direct review, this self-imposed limitation makes the Court powerless to overturn erroneous state convictions in all but the most egregious cases of bad-faith state defiance. By placing unreasonable emphasis on preserving the finality of convictions, the Court has relinquished one of its fundamental duties and given the states primary authority to determine what the Federal Constitution requires of their criminal proceedings.



      The doctrine of federal habeas corpus enables federal courts to order a state to release or retry prisoners held in violation of the Federal Constitution.(7) Federal habeas review can take place only after a state conviction has become final and all other state postconviction remedies have been exhausted.(8) Typically, federal habeas proceedings begin at the district court level.(9) Because they involve federal district court review of state court decisions, federal habeas claims are often referred to as "collateral" proceedings to distinguish them from direct appeals to the Supreme Court.(10)

      Federal habeas corpus has its origins in the Judiciary Act of 1789.(11) Initially, the doctrine of federal habeas corpus acted only to correct jurisdictional errors made by federal courts-relief was granted only to federal detainees who were convicted in courts that did not have jurisdiction over their cases.(12) During the nineteenth and twentieth centuries, federal habeas jurisdiction expanded. The Habeas Corpus Act of 1867 extended federal habeas jurisdiction to state court convictions and allowed federal courts to grant relief in cases where the conviction resulted from an unconstitutional law.(13) By 1953, at the latest, federal habeas relief could be granted for the same types of constitutional errors recognizable on direct appeal.(14) As civil rights and constitutional guarantees expanded in the 1960s, the writ of habeas corpus enabled federal courts to enforce the Bill of Rights against the states, establishing minimum standards of due process throughout the nation.(15)

      In recent years, the Rehnquist Court has severely limited the scope of federal habeas review through a number of judicial innovations.(16) Among the most effective limitations on federal habeas corpus is the Court's modification of the retroactivity doctrine in federal habeas corpus announced in Teague v. Lane.(17)


      In the context of federal habeas corpus, the term "retroactivity" refers to the issue of whether a "new rule" can be applied to a federal habeas petitioner who, by definition, is a prisoner whose conviction has already become final.(18) A new rule, generally speaking,(19) is a rule that did not exist at the time the petitioner's conviction became final.(20)

      Prior to 1965, the Court generally applied new constitutional rules retroactively to collateral appeals, as it did to cases heard on direct review.(21) In 1965, the Supreme Court held in Linhletter v. Walker(22) that the "Constitution neither prohibits nor requires retrospective effect" for new constitutional rules of criminal procedure.(23) Since its decision in Linkletter, the Court occasionally refused to apply a new ruling retroactively to cases on both direct and collateral review when it found that the new rule would excessively disrupt preexisting law.(24) Without distinguishing between collateral and direct appeals, the Court considered the following three factors in determining whether to apply a ruling retroactively: "(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."(25)

      In a pair of minority opinions that would later have a substantial impact, Justice Harlan criticized the Linkletter approach and proposed a retroactivity test that would distinguish between direct and collateral review.(26) Justice Harlan suggested that new rules should always be applied to cases not yet final and that new rules should not be applied to cases that had already become final.(27) Justice Harlan argued that denying retroactive application of new rules to convictions that had already become final would preserve the finality of state court convictions and help prevent burdensome litigation.(28)

      Justice Harlan's suggested rule of non-retroactivity in federal habeas cases was not absolute, however. Rather, it contemplated two narrow exceptions. The first exception included new rules that "place, as a matter of constitutional interpretation, certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe."(29) The second exception applied only to procedures" |implicit in the concept of ordered liberty.'"(30)

      Gradually, the Court embraced parts of Justice Harlan's view. In United States v. Johnson,(31) the Court held that new Fourth Amendment rules should apply to non-final convictions, but not to federal habeas claims.(32) Five years later, in Griffith v. Kentucky,(33) the Court accepted the first half of Justice Harlan's proposal and held that new constitutional rules could always provide the basis for relief on direct review. It was not until Teague v. Lane,(34) eighteen years after Justice Harlan's separate opinions in Mackey and Desist, that the Court expressly adopted the second half of Justice Harlan's rule, holding that new rules of criminal procedure could not be applied in federal habeas proceedings.(35) As will be demonstrated below, however, the Court did much more than adopt Justice Harlan's rule. Justice Harlan's separate opinions became the precedential vehicle through which the Court, by nearly all accounts,(36) drastically rewrote the law of retroactivity.


      In Teague v. Lane,(37) Justice O'Connor, writing for a plurality of the Court, held that a habeas petitioner cannot obtain relief on the basis of a "new rule," unless the new rule falls within one of two narrow exceptions.(38) In doing so, the Court overruled nearly twenty-five years of retroactivity law, rejecting the Linkletter approach in favor of Justice Harlan's proposed presumption of nonretroactivity of "new rules."

      This was not the most dramatic of the changes effected by Teague, however. The plurality's remaining innovations modified Justice Harlan's rule to such a degree that it has been argued that Teague distorted rather than adopted Justice Harlan's views.(39)

      The first modification-perhaps the most important aspect of Teague--is the plurality's expansion of Justice Harlan's definition of a "new rule."(40) Justice Harlan had defined a new rule as any rule other than settled law at the time of trial and rules that fell within the "logical compass" of established rules.(41) Since Justice Harlan's definition does not regard rules that come within the "logical compass" of established precedents as new, his definition would preserve the Court's habeas corpus function of extending and clarifying constitutional rights to those situations within the "logical compass" of its previous decisions.

      The plurality in Teague modified this definition in a fashion that was, to say the least, crafty. The plurality achieved this by articulating conflicting definitions of a new rule.(42) The Court first defined a new rule very broadly, then it gave a much narrower definition: In general, . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.(43)

      The words and examples selected in the first definition suggest that new rules are ground-breaking decisions that overturn established standards. This formulation, like Justice Harlan's, does not seem to prohibit the application of an old rule to a new set of facts. The second definition, which the plurality offered as a clarification of the first, did far more than "put it differently," however.(44) This second conception of a new rule, as it was applied in Teague and its progeny,(45) had enormous consequences for the scope and function of federal habeas review. As Justice Brennan pointed out in dissent, "[f]ew...

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