Rights and remedies in state habeas proceedings.

• Author: Mazzone, Jason
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium

In 2008, in Danforth v. Minnesota, the United States Supreme Court held that state courts, in their own post-conviction proceedings, were entitled to give broader retroactive effect to new rules of federal constitutional criminal procedure announced by the Court than would be available to state inmates on federal habeas review. (1) This short essay examines the effects of Danforth on the practices of state courts to date and its likely impact in the future. Part I briefly reviews the Court's retroactivity jurisprudence and state court retroactivity practices prior to Danforth, and then discusses Danforth itself. Part II examines state court decisions involving retroactivity after Danforth in order to assess Danforth's effects so far on state court practices. The essay concludes that while Danforth gives state courts the opportunity to apply federal rules more generously, it is hard for state courts to escape the influence of the Supreme Court's own retroactivity analysis; even when state courts elect to exercise independence, there may be practical limits on how much they are able to accomplish.

1. RETROACTMTY: PAST AND PRESENT

   Most of the provisions of the Bill of Rights apply to state government via the Fourteenth Amendment's Due Process Clause, just as they apply to the federal government. (2) Application of the criminal procedural provisions of the Bill of Rights to the states raises a basic question: when the Supreme Court rules for the first time that a state practice violates a provision of the Bill of Rights, do defendants who have already been convicted benefit from that ruling?

   1. Linkletter and Stovall

      The Supreme Court first confronted this question in 1965, in Linkletter v. Walker. (3) In that case, the Court held that "the Constitution neither prohibits nor requires" the retroactive application of new rules of criminal procedure. (4) Instead, the Court explained, determining retroactivity required "weigh[ing] the merits and demerits in each case." (5) Two years later, in Stovall v. Denno, the Court identified three criteria to guide the case-by-case analysis for determining retroactivity: (1) "the purpose to be served by the new [rule], (2) the extent of reliance by law enforcement authorities on the old [rule], and (3) the effect on the administration of justice of a retroactive application of the new [rule]." (6) In announcing these criteria, the Court drew no general distinction between cases in which the conviction was final--so that only habeas review was available--and cases still in the trial or appellate stages. (7) This was because the Linkletter/Stovall approach was intended to be flexible enough to allow for the full scope of any retroactivity to be determined after a new rule was announced. (8) But therein lies the problem. As Justice Harlan quickly pointed out in urging that "[r]etroactivity must be rethought," the three-prong test was also unpredictable--and it produced seemingly inconsistent results. (9)

   2. Griffith and Teague

      The Court soon heeded Justice Harlan's advice. In a pair of cases, Griffith v. Kentucky (10) and Teague v. Lane, (11) the Court provided clearer rules to govern retroactivity, and it drew a sharp line between habeas cases and cases in which the defendant's conviction had not yet worked its way through the appellate process (and so was not yet final). In Griffith, the Court held that all new rules announced by the Court applied retroactively to all cases, state or federal, pending on direct review or not yet final. (12) In place of the three-prong analysis of Linkletter/Stovall, there would be blanket retroactivity. By contrast, under Teague, a new rule applies retroactively to cases that were final when the rule was announced in just two circumstances: (1) where a new substantive rule places certain kinds of private conduct beyond the power of the government to proscribe; and (2) where a new procedural rule defines procedures '"implicit in the concept of ordered liberty.'" (13) A new procedural rule satisfies the second exception only if it is a "watershed rule[]" (14) that implicates fundamental fairness and the accuracy of the criminal proceeding, such that without the rule "the likelihood of an accurate conviction is seriously diminished." (15) As a result, habeas petitioners generally benefit from new substantive rules because they "necessarily carry a significant risk that a defendant stands convicted of 'an act that the law does not make criminal' or faces a punishment that the law cannot impose upon him." (16) However, new procedural rules rarely qualify for retroactive application under the Teague standard. Indeed, the only watershed rule the Court has recognized is the right to trial counsel established by Gideon v. Wainwright. (17) The Court has also stated that it is unlikely that there are any new watershed rules yet to be announced. (18) In other words, under Teague, once a conviction is final there is virtually no chance that the convicted defendant will be able to seek in a habeas petition the benefit of a new procedural rule that the Court announces.

      Or so it seemed. Teague involved a state inmate who filed his habeas petition in federal court. (19) While the restrictive Teague approach applied to all federal habeas petitions, the case said nothing about whether the approach also applied to habeas petitions (or other post-conviction applications) brought by state inmates in state court. Did Teague also mean that state courts could only apply new federal rules in state habeas proceedings if the rules were watershed rules? The Supreme Court only answered that question in 2008 when it decided Danforth v. Minnesota, (20) holding that state courts could indeed apply new rules more broadly than Teague mandated.

   3. State Court Practices Following Teague

      State courts, of course, did not have the luxury of waiting almost two decades after Teague was decided to determine whether the retroactivity approach of that case governed state habeas proceedings. Most state courts, confronted with habeas petitioners seeking the benefit of new procedural rules announced by the Supreme Court, simply adhered to the narrow Teague standard. (21) In so doing, some state courts took the position that they were required to follow Teague and could not adopt a retroactivity standard that would give a broader class of habeas petitioners the benefit of new Supreme Court rules. (22) Yet, most state courts that followed Teague observed they were not required to do so, and were adopting Teague as the appropriate retroactivity standard to apply in state court proceedings. (23) Some state courts even adopted the Teague standard in determining the retroactivity of state law rules of criminal procedure. (24)

      Nonetheless, some state courts did not follow Teague and instead implemented a different approach to retroactive application of new federal rules in state habeas proceedings. These approaches varied in terms of their proximity to the Teague standard itself.

      The Nevada Supreme Court adopted a modified version of Teague. In Cowell v. Nevada, (25) that court asserted its authority to "provide broader retroactive application of new constitutional rules of criminal procedure than Teague and its progeny require." (26) While describing Teague to be "sound in principle," the Nevada court observed that "the Supreme Court has applied it so strictly in practice that decisions defining a constitutional safeguard rarely merit application on collateral review." (27) The Nevada court recognized the reason for Teague's narrowness: "[s]trictly constraining retroactivity serves the Supreme Court's purpose of circumscribing federal habeas review of state court decisions." (28) Nonetheless, the court explained, "as a state court we choose not to bind quite so severely our own discretion in deciding retroactivity." (29) The court in Cowell therefore adopted "the general framework of Teague," while reserving its "prerogative to define and determine within this framework whether a rule is new and whether it falls within the two exceptions to nonretroactivity." (30) In other words, Teague's components applied, but the state court would determine exactly how. Under the Nevada approach,

      when a rule is new, it will still apply retroactively in two instances: (1) if the rule establishes that it is unconstitutional to proscribe certain conduct as criminal or to impose a type of punishment on certain defendants because of their status or offense; or (2) if it establishes a procedure without which the likelihood of an accurate conviction is seriously diminished. (31) This approach allows for broader retroactive application of new rules than does Teague because the first exception is not limited to cases involving "primary, private individual" conduct and the second exception does not require the new rule to be a "watershed" rule. (32) Cowell involved the question of whether the ruling of Ring v. Arizona, (33) that that the Sixth Amendment requires a jury to find the aggravating factors necessary for imposing the death penalty, applied retroactively to death penalty cases already final; applying its modified Teague approach, the Nevada court held there was no retroactive application of Ring. (34)

      Instead of following Teague, Missouri elected to adhere to the Linkletter/Stovall three-prong test that Teague replaced. (35) Explaining its decision, the Missouri Supreme Court announced:

      It is up to each state to determine whether to apply the rule set out in Teague, to continue to apply the rule set out in Linkletter/Stovall, or to apply yet some other rule appropriate for determining retroactivity of a new constitutional rule to cases on collateral review. So long as the state's test is not narrower than that set forth in Teague, it will pass constitutional muster. (36) The Linkletter/Stovall standard, the court said, "comports better with Missouri's legal tradition." (37) Applying Linkletter/Stovall...