A new approach to the Teague doctrine.

Author:Turner, Kendall

INTRODUCTION I. RETROACTIVITY IN CRIMINAL PROCEDURE: A BRIEF HISTORY A. Retroactivity Before Teague B. Teague v. Lane C. The Antiterrorism and Effective Death Penalty Act II. THE UNEXAMINED TEAGUE IS NOT WORTH USING A. Federal Habeas Review of Federal Convictions B. Initial-Review Collateral Proceedings C. Federal Habeas Review of State Convictions Where There Was No State Court Decision on the Merits of the Petitioner's Claim III. THE PROBLEM WITH THE TEAGUE DISCONNECT A. Bright-Line Rules B. Docket Management C. The Way Forward CONCLUSION INTRODUCTION

Griffith v. Kentucky held that new constitutional rules of criminal procedure always apply retroactively to cases on direct review. (1) By contrast, under the doctrine announced in Teague v. Lane, such new rules do not apply retroactively to cases on collateral review. (2) Thus, for example, a defendant whose conviction became final one day before Batson v. Kentucky (3) issued could not benefit from Batson's rule, even if the exact timing of both cases was a matter of chance and even if everyone agreed that there was a Batson violation in the unfortunate defendant's trial.

Because it produces such results, the Teague doctrine has been attacked as fundamentally unfair, overly harsh, and irreconcilable with the idea that courts do not make law. (4) For example, Erwin Chemerinsky, writing shortly after Teague was decided, noted that the decision "severely limited the ability of federal courts to hear constitutional claims raised in habeas corpus petitions," notwithstanding the fact that "[c]ountless criminal procedure protections" had previously been "recognized in cases arising from habeas petitions." (5) An unsigned student piece in the Harvard Law Review argued that Teague's dramatic reduction in the retroactive application of new rules to cases on collateral review "failed to provide a more principled approach than the one it discarded." (6) Other articles said it all in their titles: The Court Declines in Fairness--Teague v. Lane (7) and More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane. (8)

Over time, this criticism softened. (9) Commentators and the Supreme Court explained that Teague, while harsh, is suited to the purposes of collateral review. After all, collateral review is not meant to be a substitute for direct review, but is meant merely to provide an "additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards." (10) To be a sufficient incentive, collateral review need only apply the law controlling at the time the original trial took place; a state court cannot be deterred from doing something that isn't yet known to be unconstitutional. And while Teague leaves some defendants without redress for constitutional wrongs, the Court has determined that society's interest in repose and federal court deference to state courts outweighs its interest in readjudicating convictions to ensure they conform to contemporary constitutional law.

These federalism and finality concerns are at their apex in the context in which the Teague decision was rendered: when a federal court is reviewing a state court conviction that has already been through a full round of state collateral review on the merits of the claim raised before the federal court. But since Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, (11) Teague has been made less significant in this context. (12) AEDPA explicitly requires federal habeas courts to defer to state court determinations on the merits so long as they are neither "contrary to," nor an "unreasonable application of" Supreme Court precedent that was "clearly established" at the time of the state court decision, nor "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." (13) This rule is generally stricter than the Teague doctrine for two reasons. First, it limits the source of "old" rules eligible for retroactive application to Supreme Court jurisprudence, whereas Teague recognizes that "old" rules may come from other sources. (14) Second, it bars relief not only when the petitioner's claims would require the habeas court to announce or apply a new rule, but also when the petitioner's claims would require the habeas court to reverse a state court decision that, while wrong, is not unreasonably wrong.

Nevertheless, the cases in which Teague bars retroactivity are not a perfect subset of the cases in which AEDPA bars retroactivity. (15) Accordingly, in recent years, commentators have focused on harmonizing the two doctrines in circumstances where both apply (16) and criticizing AEDPA rather than Teague. (17) This focus makes sense: AEDPA controls in a majority of habeas review contexts, and as even the Supreme Court has recognized, "in a world of silk purses and pigs' ears," AEDPA "is not a silk purse of the art of statutory drafting." (18) While the two inquiries are formally distinct, (19) commentators largely agree that AEDPA frequently supersedes Teague in the prototypical Teague situation--where a federal court is reviewing a state court determination on the merits that has already been perfected by a round of collateral review at the state level. (20)

Perhaps because of the focus on the relationship between AEDPA and Teague, neither courts nor scholars have seriously examined how Teague is functioning in contexts in which AEDPA's deferential standard of review does not apply. This Note provides that analysis. It focuses on three scenarios--when a federal court is reviewing a federal conviction, when a federal or state court is reviewing a case in "initial-review collateral proceedings," (21) and when a federal court is reviewing a state conviction in which there was no state court finding on the merits of the claim raised in federal court--to show that Teague is applied in contexts in which federalism and finality cut against its application. This approach undermines the fairness of habeas proceedings for individual defendants and compromises principles of integrity in judicial review that the retroactivity doctrine is meant to serve. Although this topic has received virtually no attention, Teague remains significant in its own right--indeed, it is dispositive for many criminal defendants.

This Note begins in Part I with a brief history of the Court's approach to retroactivity. Part II analyzes the three contexts mentioned above, all of which show that the Teague doctrine is being applied in ways inconsistent with its underlying rationales. Part III explains why the current version of the Teague doctrine must change and then suggests reforms. Specifically, it argues that Teague must be sensitive to variations in the procedural posture of cases that regularly come before the federal habeas courts if the federalism and finality interests that animate that doctrine are to be vindicated. Such an approach retains Teague's bright-line luster while avoiding methodological inconsistency; it is also fairer to criminal defendants and a more effective means of keeping state prosecutors and courts within the bounds of the law.


    The history of the Supreme Court's retroactivity jurisprudence has been explored in depth elsewhere, (22) and I will not duplicate those efforts. Rather, I provide a brief background that helps explain why contemporary courts have reflexively embraced Teague in contexts in which it should not properly apply: they have been engaged in a decades-long struggle over the contours of retroactivity rules, and the Teague doctrine appears to offer some stability. But in important respects, Teague merely papers over the fact that retroactivity doctrine remains "confused and confusing." (23)

    1. Retroactivity Before Teague

      The backstory to the Teague doctrine will be familiar to many. Because the traditional scope of habeas review in the United States was considerably narrower than it is today, (24) courts didn't worry much about whether new rules would apply retroactively on collateral review. Rather, courts routinely applied new constitutional rules of criminal procedure to defendants seeking a new rule in either direct appeal or collateral proceedings, without commenting on the issue of retroactivity. (25) This approach became untenable after the Bill of Rights

      was incorporated against the states and the Warren Court expanded the procedural rights of criminal defendants. To cite just a few decisions from that Court's tenure: Mapp v. Ohio applied the exclusionary rule to the states; (26) Miranda v. Arizona required that law enforcement agents follow new procedures when interrogating suspects in custody; (27) and Gideon v. Wainwright held that indigents in state felony prosecutions had a right to the assistance of counsel. (28) These decisions made the problem of retroactivity more salient: would Miranda, for example, require the reopening of all convictions where the defendant had not received the warnings later deemed constitutionally necessary? (29)

      In 1965, the Court held in Linkletter v. Walker that the retroactive effect of a new rule should be determined case by case by examining three factors: the purpose of the new rule, reliance placed upon the old rule, and the effect on the administration of justice of retrospective application of the new rule. (30) The Court retained Linkletter's basic framework for nearly a quarter century, but tweaked it repeatedly. Indeed, the Linkletter standard delivered such divergent results in similar cases that one could argue--and many commentators did (31)--that the Court didn't just tweak it but altered it in every case. For example, in Berger v. California, the Court applied a decision retroactively on the grounds that it had been "clearly foreshadowed" in prior case...

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