A new approach to overcoming the insurmountable "watershed rule" exception to Teague's collateral review killer.

AuthorLandes, Ezra D.

    Timing is everything. Just ask Marvin Bockting or Lonnie Burton. Both men are prisoners convicted of heinous crimes. Bockting was sentenced to life in prison for sexual assault of a six-year-old girl, (1) while Burton was given forty-six years for rape, robbery and burglary. (2) Both men, however, were either convicted or sentenced under rules of criminal procedure that the United States Supreme Court finds wholly unconstitutional. (3) Yet, the Court has held that Bockting has no recourse through a writ of habeas corpus. (4) That is because final judgment was entered in his case prior to the Court's landmark holding in Crawford v. Washington, (5) which overruled Ohio v. Roberts (6) in establishing that the Sixth Amendment bars the admission of out-of-court statements unless the declarant is available to testify and can be cross-examined by the defendant. (7) For Burton, it appears equally unpromising. Final judgment was entered in his case before the landmark decision of Blakely v. Washington, (8) which held that the Sixth Amendment requires that absent determinations by a jury, a judge's imposed sentence cannot fall outside of state sentencing guidelines. (9) For both defendants, perhaps the greatest impediment is that while Crawford and Blakely represent "landmark" rulings, (10) neither one appears to be "watershed," (11) as required by Teague v. Lane. (12)

    In Teague, the Court effectively barred the vast majority of its new rules from being applied retroactively on collateral review. (13) The Court did, however, carve out two very narrow exceptions. (14) First, new substantive rules can be applied retroactively. (15) Second, new procedural rules that are watershed can be applied retroactively. (16) On fourteen occasions the Court has been asked to determine whether or not a new rule is watershed. All fourteen times the Court has found the rule not to be watershed. (17)

    This Article will propose a new approach to overcoming the seemingly insurmountable watershed rule exception. While a single case--such as Crawford or Blakely--may not rise to watershed status, this Article will suggest that a line of cases could be considered watershed. (18) It will be shown that the highly subjective nature of this exception lends itself perfectly to this type of reasoning, and that adoption of this approach would help reconcile some inherent conflicts encountered by the Court whenever Teague retroactivity comes before it. (19)

    Part II of this Article will provide the necessary legal framework, by tracing habeas corpus and the issue of retroactivity from the writ's origins through Teague and its aftermath. (20) Part III will then propose the above mentioned "line of cases" approach and consider its potential in light of the Court's recent holdings in Whorton v. Bockting and Burton v. Stewart. (21) Finally, Part IV will conclude the Article. (22)


    1. Origins of Habeas Corpus

      The Great Writ of habeas corpus--granting prisoners relief from unlawful imprisonment--finds its origins in English common law. William Blackstone explained the issuance of these writs "on the ground that the 'king is at all times entitled to have an account, why the liberty of any of his subjects is restrained.'" (23) After four centuries of practice, codification finally came in the form of the Habeas Corpus Act of 1679. (24) This Act "enlarged habeas power by authorizing issuance of the writ throughout the realm (not merely in a particular region) and at any time (not just during the court's term)." (25)

      The right of prisoners to petition for the writ when being held by federal authorities was adopted by the United States and provided for in the Constitution, which states in relevant part that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (26) Congress ultimately extended this right to state prisoners with the Judiciary Act of 1867. (27)

    2. Retroactivity of Supreme Court Decisions on Habeas Review

      1. Pre-1965

        Before 1965, retroactivity was a non-issue: "[T]he Supreme Court assumed all of its decisions should apply retroactively." (28) In the 1960's, however, the Court began interpreting the Due Process Clause of the Fourteenth Amendment as incorporating provisions of the Bill of Rights (notably the Fourth, Fifth, and Sixth Amendments) against the states. (29) In extending these protections, however, the Court recognized the potentially disruptive influence retroactivity might have on state judicial systems. (30)

      2. 1965: Linkletter v. Walker (31)

        The Court attempted to alleviate the burden of retroactivity with its holding in Linkletter by deciding that the new exclusionary rule of Mapp--which overruled Wolf v. Colorado (32)--did not have retroactive effect for collateral habeas proceedings. Linkletter established a three-part balancing test for retroactivity. Throughout the Linkletter era, a determination on retroactivity was made "by examining the purpose of the [new] rule, the reliance of the States on prior law, and the effect on the administration of justice of a retroactive application of the [new] rule." (33) The Linkletter test was applied irrespective of whether the case was before the court on direct review or collateral review. (34)

      3. 1965-1989: The Linkletter Years

        Linkletter ruled the roost for nearly a quarter century, though its tenure was hardly subdued. (35) Inspired by Professor Paul Mishkin's Harvard Law Review article, (36) Justice Harlan repeatedly criticized the test, particularly finding fault with Linkletter's inability to distinguish defendants based on their procedural status. This amounted to a cruel game of certiorari roulette, as the eventual fate of two similarly situated prisoners depended almost entirely on which had the good fortune of being party to the direct review case the Court agreed to hear. (37) Shortly before his retirement, Justice Harlan argued in a series of dissenting opinions (38) that new rules should be applied retroactively to all cases on direct appeal, but should only be applied retroactively on collateral review if the rule placed the conduct of the convict beyond the power of the State to proscribe it, (39) or if applying the new rule retroactively was "implicit in the concept of ordered liberty." (40)

        In 1987, Justice Harlan received some vindication, but only on his first point. In Griffith v. Kentucky, (41) the Court applied the new rule of Batson v. Kentucky (42) retroactively because the defendant's case was still pending on direct appeal. (43) Griffith did not speak to collateral review, and so for those cases Linkletter remained good law.

      4. 1989: Teague v. Lane (44)

        Finally, in 1989, the Court fully "embraced" Justice Harlan's distinction between direct and collateral review. (45) In Teague, the Court considered the retroactivity of Taylor v. Louisiana, (46) which "held that the Sixth Amendment required jury venire to be drawn from a fair cross section of the community." (47) Teague proposed that the fair cross section requirement be extended to the petit jury. (48) The Court refused, however, to answer whether or not it could, since a response in the affirmative would result in a new rule that regardless of its validity could not be applied retroactively. (49) Teague, therefore, established that "[r]etroactivity is properly treated as a threshold question," and also helped "clarify how the question of retroactivity should be resolved for cases on collateral review." (50) Agreeing that Linkletter "require[ d] modification," (51) Justice O'Connor, in a plurality opinion, outlined in great detail the rules of retroactivity that are unwaveringly in use today.

        First, the Court was clear that old rules apply both on direct and collateral review. (52) The Teague doctrine, therefore, only applies to "new rules," which makes the distinction between new and old a rather significant inquiry and the source of great debate. (53) A rule that is "merely an application of the principle that governed" a prior Supreme Court case is old and retroactive. (54) "[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." (55) The Court added that "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." (56) Despite the bit of emphasis in the original, one still might assume that by adding "precedent" to the mix, this elaboration would provide petitioners with a much needed qualifier of the broadly conceived first portion. (57) That has not been the case, however, as Teague and its progeny appear unwilling to find many of the Court's holdings "new," (58) accomplishing this by taking advantage of the word "dictated" to repeatedly find that the given precedent "support[s]" but does not "mandate" a rule. (59) To be free to call a rule "old," the Court demands a virtual carbon copy case, when the reality is that "few cases can be said to pose precisely the same legal issue resolved in a prior case." (60)

        Proceeding under the assumption that most rules are new, Teague then went on to affirm what it had previously set forth in Griffith--that a new rule receives full retroactivity for cases on direct review. (61) Alternately, Teague held that new rules should receive very limited retroactivity for cases on collateral review. In those instances, a new rule applies retroactively "only if (1) the rule is substantive [and not procedural] or (2) the rule is a "'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." (62) As to the first exception, a rule is substantive when "it alters the range of conduct or the class of persons the law punishes," (63) but is procedural if it regulates "the manner of determining the defendant's culpability." (64) As to the second Teague...

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