Welch v. United States

(Slip Opinion) OCTOBER TERM, 2015 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WELCH v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 15–6418. Argued March 30, 2016—Decided April 18, 2016

Federal law makes the possession of a firearm by a felon a crime pun-

ishable by a prison term of up to 10 years, 18 U. S. C. §§922(g),

924(a)(2), but the Armed Career Criminal Act of 1984 increases that

sentence to a mandatory 15 years to life if the offender has three or

more prior convictions for a “serious drug offense” or a “violent felo-

ny,” §924(e)(1). The definition of “violent felony” includes the so-

called residual clause, covering any felony that “otherwise involves

conduct that presents a serious potential risk of physical injury to

another.” §924(e)(2)(B)(ii). In Johnson v. United States, 576 U. S.

___, this Court held that clause unconstitutional under the void-for-

vagueness doctrine.

Petitioner Welch was sentenced under the Armed Career Criminal

Act before Johnson was decided. On direct review, the Eleventh Cir-

cuit affirmed his sentence, holding that Welch’s prior Florida convic-

tion for robbery qualified as a “violent felony” under the residual

clause. After his conviction became final, Welch sought collateral re-

lief under 28 U. S. C. §2255, which the District Court denied. The

Eleventh Circuit then denied Welch a certificate of appealability.

Three weeks later, this Court decided Johnson. Welch now seeks the

retroactive application of Johnson to his case.

Held: Johnson announced a new substantive rule that has retroactive

effect in cases on collateral review. Pp. 6–15.

(a) An applicant seeking a certificate of appealability in a §2255

proceeding must make “a substantial showing of the denial of a con-

stitutional right.” §2253(c)(2). That standard is met when “reasona-

ble jurists could debate whether . . . the petition should have been re-

solved in a different manner.” Slack v. McDaniel, 529 U. S. 473, 484.

The question whether Welch met that standard implicates a broader

2 WELCH v. UNITED STATES

Syllabus

legal issue: whether Johnson is a substantive decision with retroac-

tive effect in cases on collateral review. If so, then on the present

record reasonable jurists could at least debate whether Welch should

obtain relief in his collateral challenge to his sentence. Pp. 6–7.

(b) New constitutional rules of criminal procedure generally do

not apply retroactively to cases on collateral review, but new sub-

stantive rules do apply retroactively. Teague v. Lane, 489 U. S. 288,

310; Schriro v. Summerlin, 542 U. S. 348, 351. Substantive rules al-

ter “the range of conduct or the class of persons that the law punish-

es,” id., at 353. Procedural rules, by contrast, “regulate only the

manner of determining the defendant’s culpability.” Ibid. Under this

framework, Johnson is substantive. Before Johnson, the residual

clause could cause an offender to face a prison sentence of at least 15

years instead of at most 10. Since Johnson made the clause invalid,

it can no longer mandate or authorize any sentence. By the same log-

ic, Johnson is not procedural, since it had nothing to do with the

range of permissible methods a court might use to determine whether

a defendant should be sentenced under the Act, see Schriro, supra, at

353. Pp. 7–9.

(c) The counterarguments made by Court-appointed amicus are

unpersuasive. She contends that Johnson is a procedural decision

because the void-for-vagueness doctrine is based on procedural due

process. But the Teague framework turns on whether the function of

the rule is substantive or procedural, not on the rule’s underlying

constitutional source. Amicus’ approach would lead to results that

cannot be squared with prior precedent. Precedent also does not

support amicus’ claim that a rule must limit Congress’ power to be

substantive, see, e.g., Bousley v. United States, 523 U. S. 614, or her

claim that statutory construction cases are an ad hoc exception to

that principle and are substantive only because they implement the

intent of Congress. The separation-of-powers argument raised by

amicus is also misplaced, for regardless of whether a decision in-

volves statutory interpretation or statutory invalidation, a court

lacks the power to exact a penalty that has not been authorized by

any valid criminal statute. Pp. 10–15.

Vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ.,

joined. THOMAS, J., filed a dissenting opinion.

Cite as: 578 U. S. ____ (2016) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–6418

_________________

GREGORY WELCH, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 18, 2016]

JUSTICE KENNEDY delivered the opinion of the Court.

Last Term, this Court decided Johnson v. United States,

576 U. S. ___ (2015). Johnson considered the residual

clause of the Armed Career Criminal Act of 1984, 18

U. S. C. §924(e)(2)(B)(ii). The Court held that provision

void for vagueness. The present case asks whether John-

son is a substantive decision that is retroactive in cases on

collateral review.

I

Federal law prohibits any felon—meaning a person who

has been convicted of a crime punishable by more than a

year in prison—from possessing a firearm. 18 U. S. C.

§922(g). A person who violates that restriction can be

sentenced to prison for up to 10 years. §924(a)(2). For

some felons, however, the Armed Career Criminal Act

imposes a much more severe penalty. Under the Act, a

person who possesses a firearm after three or more convic-

tions for a “serious drug offense” or a “violent felony” is

subject to a minimum sentence of 15 years and a maxi-

mum sentence of life in prison. §924(e)(1). Because the

ordinary maximum sentence for a felon in possession of a

firearm is 10 years, while the minimum sentence under

2 WELCH v. UNITED STATES

Opinion of the Court

the Armed Career Criminal Act is 15 years, a person

sentenced under the Act will receive a prison term at least

five years longer than the law otherwise would allow.

The Act defines “violent felony” as

“any crime punishable by imprisonment for a term ex-

ceeding one year . . . that—

“(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

“(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that pre-

sents a serious potential risk of physical injury to an-

other.” §924(e)(2)(B).

Subsection (i) of this definition is known as the elements

clause. The end of subsection (ii)—“or otherwise involves

conduct that presents a serious potential risk of physical

injury to another”—is known as the residual clause. See

Johnson, supra, at ___ (slip op., at 2). It is the residual

clause that Johnson held to be vague and invalid.

The text of the residual clause provides little guidance

on how to determine whether a given offense “involves

conduct that presents a serious potential risk of physical

injury.” This Court sought for a number of years to de-

velop the boundaries of the residual clause in a more pre-

cise fashion by applying the statute to particular cases. See

James v. United States, 550 U. S. 192 (2007) (residual

clause covers Florida offense of attempted burglary);

Begay v. United States, 553 U. S. 137 (2008) (residual

clause does not cover New Mexico offense of driving under

the influence of alcohol); Chambers v. United States, 555

U. S. 122 (2009) (residual clause does not cover Illinois

offense of failure to report to a penal institution); Sykes v.

United States, 564 U. S. 1 (2011) (residual clause covers

Indiana offense of vehicular flight from a law-enforcement

Cite as: 578 U. S. ____ (2016) 3

Opinion of the Court

officer). In Johnson, a majority of this Court concluded

that those decisions did not bring sufficient clarity to the

scope of the residual clause, noting that the federal courts

remained mired in “pervasive disagreement” over how the

clause should be interpreted. Johnson, 576 U. S., at ___

(slip op., at 9).

The Johnson Court held the residual clause unconstitu-

tional under the void-for-vagueness doctrine, a doctrine

that is mandated by the Due Process Clauses of the Fifth

Amendment (with respect to the Federal Government) and

the Fourteenth Amendment (with respect to the States).

The void-for-vagueness doctrine prohibits the government

from imposing sanctions “under a criminal law so vague

that it fails to give ordinary people fair notice of the con-

duct it punishes, or so standardless that it invites arbi-

trary enforcement.” Id., at ___ (slip op., at 3). Johnson

determined that the residual clause could not be recon-

ciled with that prohibition.

The vagueness of the residual clause rests in large part

on its operation under the categorical approach. The

categorical approach is the framework the Court has

applied in deciding whether an offense qualifies as a vio-

lent felony under the Armed Career Criminal Act. See id.,

at ___ (slip op., at 4). Under the categorical approach, “a

court assesses whether a crime qualifies as a violent fel-

ony ‘in terms of how the law defines the offense and not in

terms of how an individual offender might have committed

it on a particular occasion.’ ” Ibid. (quoting Begay, supra,

at 141). For purposes of the residual clause, then, courts

were to determine whether a crime involved a “serious

potential risk of physical injury” by considering not the

defendant’s actual conduct but an “idealized ordinary case

of the crime.” 576 U. S., at ___ (slip op., at 12).

The Court’s analysis in Johnson thus cast no doubt on

the many laws that “require gauging the riskiness of

conduct in which an individual defendant engages on a

4 WELCH v. UNITED STATES

Opinion of the Court

particular occasion.” Ibid. The residual clause failed not

because it adopted a “serious potential risk” standard but

because applying that standard under the categorical

approach required courts to assess the hypothetical risk

posed by an abstract generic version of the offense. In the

Johnson Court’s view, the “indeterminacy of the wide-

ranging inquiry” made the residual clause more unpre-

dictable and arbitrary in its application than the Consti-

tution allows. Id., at ___ (slip op., at 5). “Invoking so

shapeless a provision to condemn someone to prison for 15

years to life,” the Court held, “does not comport with the

Constitution’s guarantee of due process.” Id., at ___ (slip

op., at 10).

II

Petitioner Gregory Welch is one of the many offenders

sentenced under the Armed Career Criminal Act before

Johnson was decided. Welch pleaded guilty in 2010 to one

count of being a felon in possession of a firearm. The

Probation Office prepared a presentence report finding

that Welch had three prior violent felony convictions,

including a Florida conviction for a February 1996 “strong-

arm robbery.” The relevant Florida statute prohibits

taking property from the person or custody of another with

“the use of force, violence, assault, or putting in fear.” Fla.

Stat. §812.13(1) (1994). The charging document from the

1996 Florida case tracked that statutory language. App.

187a. The 2010 federal presentence report provides more

detail. It states that, according to the robbery victim,

Welch punched the victim in the mouth and grabbed a

gold bracelet from his wrist while another attacker

grabbed a gold chain from his neck.

Welch objected to the presentence report, arguing (as

relevant here) that this conviction was not a violent felony

conviction under the Armed Career Criminal Act. The

District Court overruled the objection. It concluded that

Cite as: 578 U. S. ____ (2016) 5

Opinion of the Court

the Florida offense of strong-arm robbery qualified as a

violent felony both under the elements clause, 18 U. S. C.

§924(e)(2)(B)(i), and the residual clause, §924(e)(2)(B)(ii).

The District Court proceeded to sentence Welch to the

Act’s mandatory minimum sentence of 15 years in prison.

The Court of Appeals for the Eleventh Circuit affirmed.

That court did not decide whether the conviction at issue

could qualify as a violent felony under the elements

clause. Instead, it held only that the conviction qualified

under the residual clause. This Court denied certiorari,

see Welch v. United States, 568 U. S. ___ (2013), and

Welch’s conviction became final.

In December 2013, Welch appeared pro se before the

District Court and filed a collateral challenge to his con-

viction and sentence through a motion under 28 U. S. C.

§2255. He argued, among other points, that his strong-

arm robbery conviction itself was “vague” and that his

counsel was ineffective for allowing him to be sentenced as

an armed career criminal. The District Court denied the

motion and denied a certificate of appealability.

Still proceeding pro se, Welch applied to the Court of

Appeals for a certificate of appealability. His application

noted that Johnson was pending before this Court. Welch

argued, in part, that his “armed career offender status is

unconstitutional and violate[s] [his] Fifth Amendment

right to notice of the state priors.” App. 20a. Two months

later, Welch filed a motion asking the Court of Appeals to

hold his case in abeyance until Johnson could be decided,

“based on the fact he was sentenced under the [residual

clause].” App. 15a.

In June 2015, the Court of Appeals entered a brief

single-judge order denying the motion for a certificate of

appealability. Less than three weeks later, this Court

issued its decision in Johnson holding, as already noted,

that the residual clause is void for vagueness. Welch filed

a motion asking the Court of Appeals for additional time

6 WELCH v. UNITED STATES

Opinion of the Court

to seek reconsideration of its decision in light of Johnson,

but the court returned that motion unfiled because

Welch’s time to seek reconsideration already had expired.

Welch then filed a pro se petition for certiorari. His

petition presented two questions: whether the District

Court erred in denying his §2255 motion because his

Florida robbery conviction does not qualify as a violent

felony conviction under the Armed Career Criminal Act;

and whether Johnson announced a substantive rule that

has retroactive effect in cases on collateral review. Pet. for

Cert. i. This Court granted the petition. 577 U. S. ___

(2016). Because the United States, as respondent, agrees

with Welch that Johnson is retroactive, the Court ap-

pointed Helgi C. Walker as amicus curiae in support of the

judgment of the Court of Appeals. She has ably dis-

charged her responsibilities.

III

A

This case comes to the Court in a somewhat unusual

procedural posture. Under the Antiterrorism and Effec-

tive Death Penalty Act of 1996, there can be no appeal

from a final order in a §2255 proceeding unless a circuit

justice or judge issues a certificate of appealability. 28

U. S. C. §2253(c)(1). A certificate of appealability may

issue “only if the applicant has made a substantial show-

ing of the denial of a constitutional right.” §2253(c)(2).

That standard is met when “reasonable jurists could de-

bate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner.” Slack v.

McDaniel, 529 U. S. 473, 484 (2000). Obtaining a certifi-

cate of appealability “does not require a showing that the

appeal will succeed,” and “a court of appeals should not

decline the application . . . merely because it believes the

applicant will not demonstrate an entitlement to relief.”

Miller-El v. Cockrell, 537 U. S. 322, 337 (2003).

Cite as: 578 U. S. ____ (2016) 7

Opinion of the Court

The decision under review here is the single-judge order

in which the Court of Appeals denied Welch a certificate of

appealability. Under the standard described above, that

order determined not only that Welch had failed to show

any entitlement to relief but also that reasonable jurists

would consider that conclusion to be beyond all debate.

See Slack, supra, at 484. The narrow question here is

whether the Court of Appeals erred in making that deter-

mination. That narrow question, however, implicates a

broader legal issue: whether Johnson is a substantive

decision with retroactive effect in cases (like Welch’s) on

collateral review. If so, then on the present record reason-

able jurists could at least debate whether Welch should

obtain relief in his collateral challenge to his sentence. On

these premises, the Court now proceeds to decide whether

Johnson is retroactive.

B

The normal framework for determining whether a new

rule applies to cases on collateral review stems from the

plurality opinion in Teague v. Lane, 489 U. S. 288 (1989).

That opinion in turn drew on the approach outlined by the

second Justice Harlan in his separate opinions in Mackey

v. United States, 401 U. S. 667 (1971), and Desist v. United

States, 394 U. S. 244 (1969). The parties here assume that

the Teague framework applies in a federal collateral chal-

lenge to a federal conviction as it does in a federal collat-

eral challenge to a state conviction, and we proceed on

that assumption. See Chaidez v. United States, 568 U. S.

___, ___, n. 16 (2013); Danforth v. Minnesota, 552 U. S.

264, 269, n. 4 (2008).

Under Teague, as a general matter, “new constitutional

rules of criminal procedure will not be applicable to those

cases which have become final before the new rules are

announced.” 489 U. S., at 310. Teague and its progeny

recognize two categories of decisions that fall outside this

8 WELCH v. UNITED STATES

Opinion of the Court

general bar on retroactivity for procedural rules. First,

“[n]ew substantive rules generally apply retroactively.”

Schriro v. Summerlin, 542 U. S. 348, 351 (2004); see

Montgomery v. Louisiana, 577 U. S. ___, ___ (2016) (slip

op., at 6); Teague, supra, at 307, 311. Second, new “ ‘wa-

tershed rules of criminal procedure,’ ” which are proce-

dural rules “implicating the fundamental fairness and accu-

racy of the criminal proceeding,” will also have retroactive

effect. Saffle v. Parks, 494 U. S. 484, 495 (1990); see

Teague, supra, at 311–313.

It is undisputed that Johnson announced a new rule.

See Teague, supra, at 301 (“[A] case announces a new rule

if the result was not dictated by precedent existing at the

time the defendant’s conviction became final”). The ques-

tion here is whether that new rule falls within one of the

two categories that have retroactive effect under Teague.

The parties agree that Johnson does not fall into the

limited second category for watershed procedural rules.

Welch and the United States contend instead that John-

son falls into the first category because it announced a

substantive rule.

“A rule is substantive rather than procedural if it alters

the range of conduct or the class of persons that the law

punishes.” Schriro, 542 U. S., at 353. “This includes

decisions that narrow the scope of a criminal statute by

interpreting its terms, as well as constitutional determina-

tions that place particular conduct or persons covered by

the statute beyond the State’s power to punish.” Id., at

351–352 (citation omitted); see Montgomery, supra, at ___

(slip op., at 6). Procedural rules, by contrast, “regulate

only the manner of determining the defendant’s culpabil-

ity.” Schriro, 542 U. S., at 353. Such rules alter “the

range of permissible methods for determining whether a

defendant’s conduct is punishable.” Ibid. “They do not

produce a class of persons convicted of conduct the law

does not make criminal, but merely raise the possibility

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Opinion of the Court

that someone convicted with use of the invalidated proce-

dure might have been acquitted otherwise.” Id., at 352.

Under this framework, the rule announced in Johnson

is substantive. By striking down the residual clause as

void for vagueness, Johnson changed the substantive

reach of the Armed Career Criminal Act, altering “the

range of conduct or the class of persons that the [Act]

punishes.” Schriro, supra, at 353. Before Johnson, the

Act applied to any person who possessed a firearm after

three violent felony convictions, even if one or more of

those convictions fell under only the residual clause. An

offender in that situation faced 15 years to life in prison.

After Johnson, the same person engaging in the same

conduct is no longer subject to the Act and faces at most

10 years in prison. The residual clause is invalid under

Johnson, so it can no longer mandate or authorize any

sentence. Johnson establishes, in other words, that “even

the use of impeccable factfinding procedures could not

legitimate” a sentence based on that clause. United States

v. United States Coin & Currency, 401 U. S. 715, 724

(1971). It follows that Johnson is a substantive decision.

By the same logic, Johnson is not a procedural decision.

Johnson had nothing to do with the range of permissible

methods a court might use to determine whether a de-

fendant should be sentenced under the Armed Career

Criminal Act. See Schriro, 542 U. S., at 353. It did not,

for example, “allocate decisionmaking authority” between

judge and jury, ibid., or regulate the evidence that the

court could consider in making its decision, see Whorton v.

Bockting, 549 U. S. 406, 413–414, 417 (2007); Mackey,

supra, at 700–701 (opinion of Harlan, J.). Unlike those

cases, Johnson affected the reach of the underlying statute

rather than the judicial procedures by which the statute is

applied. Johnson is thus a substantive decision and so has

retroactive effect under Teague in cases on collateral

review.

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Opinion of the Court

C

Amicus urges the Court to adopt a different understand-

ing of the Teague framework. She contends courts should

apply that framework by asking whether the constitu-

tional right underlying the new rule is substantive or

procedural. Under that approach, amicus concludes that

Johnson is a procedural decision because the void-for-

vagueness doctrine that Johnson applied is based, she

asserts, on procedural due process.

Neither Teague nor its progeny support that approach.

As described above, this Court has determined whether a

new rule is substantive or procedural by considering the

function of the rule, not its underlying constitutional

source. See, e.g., Schriro, supra, at 351–353. That is for

good reason. The Teague framework creates a balance

between, first, the need for finality in criminal cases, and

second, the countervailing imperative to ensure that crim-

inal punishment is imposed only when authorized by law.

That balance turns on the function of the rule at issue, not

the constitutional guarantee from which the rule derives.

If a new rule regulates only the procedures for determin-

ing culpability, the Teague balance generally tips in favor

of finality. The chance of a more accurate outcome under

the new procedure normally does not justify the cost of

vacating a conviction whose only flaw is that its proce-

dures “conformed to then-existing constitutional stand-

ards.” Teague, supra, at 310. On the other hand, if a new

rule changes the scope of the underlying criminal proscrip-

tion, the balance is different. A change of that character

will “necessarily carry a significant risk that a defendant

stands convicted of ‘an act that the law does not make

criminal.’ ” Bousley v. United States, 523 U. S. 614, 620

(1998) (quoting Davis v. United States, 417 U. S. 333, 346

(1974)). By extension, where the conviction or sentence in

fact is not authorized by substantive law, then finality

interests are at their weakest. As Justice Harlan wrote,

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Opinion of the Court

“[t]here is little societal interest in permitting the criminal

process to rest at a point where it ought properly never to

repose.” Mackey, 401 U. S., at 693 (opinion of Harlan, J.).

The Teague balance thus does not depend on whether

the underlying constitutional guarantee is characterized

as procedural or substantive. It depends instead on

whether the new rule itself has a procedural function or a

substantive function—that is, whether it alters only the

procedures used to obtain the conviction, or alters instead

the range of conduct or class of persons that the law pun-

ishes. See Schriro, supra, at 353; Montgomery, 577 U. S.,

at ___ (slip op., at 14). The emphasis by amicus on the

constitutional guarantee behind the new rule, then, would

untether the Teague framework from its basic purpose.

The approach amicus suggests also would lead to results

that cannot be squared with prior precedent. Decisions

from this Court show that a rule that is procedural for

Teague purposes still can be grounded in a substantive

constitutional guarantee. For instance, the Court has

adopted certain rules that regulate capital sentencing

procedures in order to enforce the substantive guarantees

of the Eighth Amendment. The consistent position has

been that those rules are procedural, even though their

ultimate source is substantive. See, e.g., Beard v. Banks,

542 U. S. 406, 408, 416–417 (2004); Sawyer v. Smith, 497

U. S. 227, 233, 241–242 (1990). From the converse per-

spective, there also can be substantive rules based on

constitutional protections that, on the theory amicus

advances, likely would be described as procedural. For

instance, a decision that invalidates as void for vagueness

a statute prohibiting “conduct annoying to persons passing

by,” cf. Coates v. Cincinnati, 402 U. S. 611, 612, 614

(1971), would doubtless alter the range of conduct that the

law prohibits. That would make it a substantive decision

under our precedent, see Schriro, 542 U. S., at 353, even if

the reasons for holding that statute invalid could be char-

12 WELCH v. UNITED STATES

Opinion of the Court

acterized as procedural.

Amicus next relies on language from this Court’s cases

describing substantive decisions as those that “place par-

ticular conduct or persons . . . beyond the State’s power to

punish,” id., at 352, or that “prohibi[t] a certain category of

punishment for a class of defendants because of their

status or offense,” Saffle, 494 U. S., at 494 (internal quota-

tion marks omitted). Cases such as these, in which the

Constitution deprives the Government of the power to

impose the challenged punishment, “represen[t] the clear-

est instance” of substantive rules for which retroactive

application is appropriate. Mackey, supra, at 693 (opinion

of Harlan, J.). Drawing on those decisions, amicus argues

that Johnson is not substantive because it does not limit

Congress’ power: Congress is free to enact a new version of

the residual clause that imposes the same punishment on

the same persons for the same conduct, provided the new

statute is precise enough to satisfy due process.

Although this Court has put great emphasis on substan-

tive decisions that place certain conduct, classes of per-

sons, or punishments beyond the legislative power of

Congress, the Court has also recognized that some sub-

stantive decisions do not impose such restrictions. The

clearest example comes from Bousley, supra. In Bousley,

the Court was asked to determine what retroactive effect

should be given to its decision in Bailey v. United States,

516 U. S. 137 (1995). Bailey considered the “use” prong of

18 U. S. C. §924(c)(1), which imposes increased penalties

on the use of a firearm in relation to certain crimes. The

Court held as a matter of statutory interpretation that the

“use” prong punishes only “active employment of the

firearm” and not mere possession. 516 U. S., at 144. The

Court in Bousley had no difficulty concluding that Bailey

was substantive, as it was a decision “holding that a sub-

stantive federal criminal statute does not reach certain

conduct.” Bousley, supra, at 620; see Schriro, supra, at

Cite as: 578 U. S. ____ (2016) 13

Opinion of the Court

354 (“A decision that modifies the elements of an offense is

normally substantive rather than procedural”). The Court

reached that conclusion even though Congress could (and

later did) reverse Bailey by amending the statute to cover

possession as well as use. See United States v. O’Brien,

560 U. S. 218, 232–233 (2010) (discussing statutory

amendment known as the “Bailey fix”). Bousley thus

contradicts the contention that the Teague inquiry turns

only on whether the decision at issue holds that Congress

lacks some substantive power.

Amicus recognizes that Bousley does not fit the theory

that, in her view, should control this case. She instead

proposes an ad hoc exception, contending that Bousley

“recognized a separate subcategory of substantive rules”

for decisions that interpret statutes (but not those, like

Johnson, that invalidate statutes). Brief for Court-

Appointed Amicus Curiae in Support of Judgment Below

40. For support, amicus looks to the separation-of-powers

doctrine. Her argument is that statutory construction

cases are substantive because they define what Congress

always intended the law to mean—unlike Johnson, which

struck down the residual clause regardless of Congress’

intent.

That argument is not persuasive. Neither Bousley nor

any other case from this Court treats statutory interpreta-

tion cases as a special class of decisions that are substan-

tive because they implement the intent of Congress.

Instead, decisions that interpret a statute are substantive

if and when they meet the normal criteria for a substan-

tive rule: when they “alte[r] the range of conduct or the

class of persons that the law punishes.” Schriro, supra, at

353.

The separation-of-powers argument that amicus raises

is also misplaced. Bousley noted that the separation of

powers prohibits a court from imposing criminal punish-

ment beyond what Congress meant to enact. 523 U. S., at

14 WELCH v. UNITED STATES

Opinion of the Court

620–621 (“[I]t is only Congress, and not the courts, which

can make conduct criminal”). But a court likewise is

prohibited from imposing criminal punishment beyond

what Congress in fact has enacted by a valid law. In

either case a court lacks the power to exact a penalty that

has not been authorized by any valid criminal statute.

Treating decisions as substantive if they involve statu-

tory interpretation, but not if they involve statutory inval-

idation, would produce unusual outcomes. “It has long

been our practice . . . before striking a federal statute as

impermissibly vague, to consider whether the prescription

is amenable to a limiting construction.” Skilling v. United

States, 561 U. S. 358, 405–406 (2010). Amicus acknowl-

edges that a decision that saves a vague statute by adopt-

ing a limiting construction is substantive, so anyone who

falls outside the limiting construction can use that deci-

sion to seek relief on collateral review. But amicus also

contends that, if a court takes the further step of striking

down the whole statute as vague, that decision is proce-

dural, so no one can use it to seek relief on collateral re-

view. That arbitrary distinction has no place in the

Teague framework.

It should be noted, of course, that not every decision

striking down a statute is ipso facto a substantive deci-

sion. A decision that strikes down a procedural statute—

for example, a statute regulating the types of evidence

that can be presented at trial—would itself be a proce-

dural decision. It would affect only the “manner of determin-

ing the defendant’s culpability,” not the conduct or persons

to be punished. Schriro, 542 U. S., at 353 (emphasis

deleted). A decision of this kind would have no retroactive

effect under Teague unless it could be considered a “water-

shed” procedural rule. See Teague, 489 U. S., at 311–313.

Johnson, however, struck down part of a criminal statute

that regulates conduct and prescribes punishment. It

thereby altered “the range of conduct or the class of per-

Cite as: 578 U. S. ____ (2016) 15

Opinion of the Court

sons that the law punishes.” Schriro, supra, at 353. It

follows that Johnson announced a substantive rule that

has retroactive effect in cases on collateral review.

* * *

It may well be that the Court of Appeals on remand will

determine on other grounds that the District Court was

correct to deny Welch’s motion to amend his sentence. For

instance, the parties continue to dispute whether Welch’s

strong-arm robbery conviction qualifies as a violent felony

under the elements clause of the Act, which would make

Welch eligible for a 15-year sentence regardless of John-

son. On the present record, however, and in light of to-

day’s holding that Johnson is retroactive in cases on col-

lateral review, reasonable jurists at least could debate

whether Welch is entitled to relief. For these reasons, the

judgment of the Court of Appeals is vacated, and the case

is remanded for further proceedings consistent with this

opinion.

It is so ordered.

Cite as: 578 U. S. ____ (2016) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–6418

_________________

GREGORY WELCH, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 18, 2016]

JUSTICE THOMAS, dissenting.

Last Term the Court held in Johnson v. United States,

576 U. S. ___ (2015), that because the residual clause of

the Armed Career Criminal Act of 1984 (ACCA), 18

U. S. C. §924(e)(2)(B)(ii), “combin[es] indeterminacy about

how to measure the risk posed by a crime with indetermi-

nacy about how much risk it takes for the crime to qualify

as a violent felony,” it is unconstitutionally vague. 576

U. S., at ___ (slip op., at 6). Federal prisoners then sought

to invoke Johnson as a basis for vacating their sentences

in federal collateral review proceedings. See 28 U. S. C.

§2255(a).

Today the Court holds that Johnson applies retroactively

to already final sentences of federal prisoners. That

holding comes at a steep price. The majority ignores an

insuperable procedural obstacle: when, as here, a court

fails to rule on a claim not presented in a prisoner’s §2255

motion, there is no error for us to reverse. The majority

also misconstrues the retroactivity framework developed

in Teague v. Lane, 489 U. S. 288 (1989), and its progeny,

thereby undermining any principled limitation on the

finality of federal convictions. I respectfully dissent.

I

As the majority observes with considerable understate-

ment, “[t]his case comes to the Court in a somewhat un-

2 WELCH v. UNITED STATES

THOMAS, J., dissenting

usual procedural posture.” Ante, at 6. This case arises from

petitioner Gregory Welch’s challenge to the Eleventh

Circuit’s denial of a certificate of appealability.

§2253(c)(1). In other words, Welch asks the Court to

review the Eleventh Circuit’s refusal to allow him to ap-

peal the claims he raised in a motion to vacate his sen-

tence and lost in the District Court. But Welch never

claimed that the residual clause was unconstitutionally

vague in his §2255 motion, let alone that Johnson applies

retroactively. Accordingly, courts below addressed neither

issue. Indeed, Johnson was not even decided when the

courts below issued their rulings. Those deficiencies

should preclude us from deciding in this case whether

Johnson is retroactive.

Our role in reviewing the denial of a certificate of ap-

pealability is far more circumscribed than normal appel-

late review. The text of 28 U. S. C. §2253 confirms this.

Defendants can appeal their convictions and sentences as

a matter of right on direct review, but §2253 deprives

courts of appeals of jurisdiction to review the denial of a

petitioner’s motion for federal postconviction relief unless

he obtains a “certificate of appealability.” §2253(c)(1).

And he can obtain that certificate only if he makes “a

substantial showing of the denial of a constitutional right.”

§2253(c)(2); see Miller-El v. Cockrell, 537 U. S. 322, 335–

336 (2003).

Accordingly, this Court has instructed that review of the

denial of a certificate of appealability is a retrospective

inquiry into whether the movant’s claims, as litigated in

the district court, warrant further proceedings—not

whether there is any conceivable basis upon which the

movant could prevail. Courts must ask whether “reason-

able jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U. S. 473, 484 (2000) (emphasis added).

They are to “look to the District Court’s application of [the

Cite as: 578 U. S. ____ (2016) 3

THOMAS, J., dissenting

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA)] to petitioner’s constitutional claims and ask

whether that resolution was debatable.” Miller-El, supra,

at 336 (emphasis added).

Until today, we did not require courts of appeals to

consider all possible constitutional issues that might

warrant relief as part of this inquiry. Those courts instead

looked to how the movant framed his case in his motion to

vacate. Even if, for example, a district court denies ha-

beas relief based on procedural default and never reached

the merits, the movant must establish not only that the

procedural ruling is “debatable” but also that his motion

“state[d] a valid claim of the denial of a constitutional

right.” Slack, supra, at 484.

Requiring a court of appeals to consider arguments not

raised in a §2255 motion is also at odds with how the

Court has described the certificate-of-appealability in-

quiry. The Court has called the decision whether to grant

a certificate of appealability a “threshold” inquiry that

“forbids” reviewing courts to engage in “full consideration

of the factual or legal bases adduced in support of the

claims.” Miller-El, supra, at 336. That is because, in the

Court’s view, the point of “[t]he [certificate of appealabil-

ity] process [is to] scree[n] out issues unworthy of judicial

time and attention and ensur[e] that frivolous claims are

not assigned to merits panels.” Gonzalez v. Thaler, 565

U. S. 134, 145 (2012). There would be no surer way to

transform this determination into a full-blown merits

appeal than to require courts of appeals to consider all

conceivable bases for relief that the movant failed to raise.

Welch’s failure to raise any Johnson-related claim in the

District Court should, therefore, bar the Eleventh Circuit

and this Court from addressing whether Johnson applies

retroactively. Welch’s §2255 motion omitted any claim

4 WELCH v. UNITED STATES

THOMAS, J., dissenting

that his sentence was invalid because the ACCA’s residual

clause is unconstitutionally vague.* Unsurprisingly, the

District Court did not address a vagueness claim that

Welch had not raised. Nor did (or could) the District

Court assess whether Johnson applies retroactively, for

we decided Johnson after the District Court ruling. In

sum, when Welch raised the vagueness of the residual

clause for the first time in his Eleventh Circuit application

for a certificate of appealability, it was too late.

The Government responds to this issue by attempting,

in its reply brief in this Court, to “expressly waiv[e] any

procedural default defense against petitioner on his John-

son claim.” Reply Brief for United States 22. But this

case has not been framed as one involving a “procedural

default,” which ordinarily refers to the affirmative defense

that a petitioner defaulted his claim in some earlier pro-

ceeding. See McCleskey v. Zant, 499 U. S. 467, 490 (1991)

(describing, in the context of a federal habeas petition

brought by a state prisoner, “procedural default” as the

“presumption against [federal] habeas adjudication . . . of

claims defaulted in state court”); see also, e.g., Jenkins v.

Anderson, 447 U. S. 231, 234, n. 1 (1980) (noting that

procedural default is an affirmative defense that must be

raised); 28 U. S. C. §2254 Rule 5 (requiring the Govern-

ment to “state whether any claim in the petition is barred

by a . . . procedural bar” in the answer to the motion).

Welch instead failed to raise that claim in this proceed-

ing by failing to present it in his motion to vacate his

sentence. And the Court of Appeals, when deciding

——————

* Welch’s §2255 motion did assert that his “robbery under Florida

[statutes] is ambiguous, vague, and was without any violence and or

physical force,” App. 96a, and that Florida robbery “has multi-

meanings.” Id., at 97a. But challenging the vagueness of Florida law is

quite different from the argument Welch needed to assert a Johnson

claim: that the residual clause is itself unconstitutionally vague.

Cite as: 578 U. S. ____ (2016) 5

THOMAS, J., dissenting

whether to grant a certificate of appealability, cannot be

expected to look beyond the claims presented in that

motion in conducting its threshold inquiry about whether

“reasonable jurists would find the district court’s assess-

ment of the constitutional claims debatable or wrong.”

Slack, 529 U. S., at 484 (emphasis added). Although the

Government purports to waive any forfeiture defense now,

it cannot alter what was before the Court of Appeals.

After Welch failed to raise a Johnson claim in his §2255

motion and the Eleventh Circuit denied a certificate of

appealability, the Government could not inject the claim

into the case.

Rather than grappling with these issues, the majority

distorts the standard for reviewing certificates of appeal-

ability by asking whether reasonable jurists would debate

the “conclusion” that Welch “failed to show any entitle-

ment to relief.” Ante, at 7. The majority thereby trans-

forms what should be a quick “overview of the claims in

the habeas petition,” Miller-El, 537 U. S., at 336 (emphasis

added), to a searching review of the “conclusion” that a

prisoner is not entitled “any” collateral relief. Ante, at 7

(emphasis added). That is preposterous. The Eleventh

Circuit, according to the majority, erred by denying Welch

the opportunity to “appeal” a claim that he failed to raise,

in part because a decision that did not yet exist when the

Eleventh Circuit ruled may entitle him to relief. The

majority’s view of AEDPA demands judicial clairvoyance;

Courts of Appeals can avoid reversal only by inventing

arguments on the movant’s behalf.

II

After bypassing what should have been an insurmount-

able procedural hurdle, the majority then gets the merits

wrong. The retroactivity rules the Court adopted in

Teague v. Lane, 489 U. S. 288, generally foreclose prison-

ers from collaterally challenging their convictions based on

6 WELCH v. UNITED STATES

THOMAS, J., dissenting

new decisions that postdate their convictions and sentences.

The only exceptions to that bar are for decisions that

announce a new substantive rule or a new “watershed”

procedural rule. See ante, at 7–8. All agree that Johnson

announced a new rule and that it is not a “watershed”

procedural rule. See ante, at 8. But the rule in Johnson

also does not satisfy our criteria for substantive rules. The

majority concludes otherwise, ante, at 8–9, but its ap-

proach fails under Teague’s own terms and erodes any

meaningful limits on what a “substantive” rule is.

A

The Court has identified two types of substantive rules,

and Johnson’s rule of decision fits neither description. It

is not a new substantive constitutional rule, nor does it

narrow the scope of a criminal statute through statutory

construction.

1

Time and again, the Court has articulated the test for

defining a substantive constitutional rule as follows: The

rule must “place particular conduct or persons covered by

the statute beyond the State’s power to punish.” Schriro

v. Summerlin, 542 U. S. 348, 352 (2004); see also Beard v.

Banks, 542 U. S. 406, 416 (2004) (similar); Penry v.

Lynaugh, 492 U. S. 302, 330 (1989) (rule is substantive if

“the Constitution itself deprives the State of the power to

impose a certain penalty”). This is also the test the Court

has purported to apply in case after case. See, e.g., Sawyer

v. Smith, 497 U. S. 227, 233, 241 (1990) (prohibiting pros-

ecutors from misleading the jury to believe that it was not

responsible for a death sentence was a nonsubstantive

rule that did not “place an entire category of primary

conduct beyond the reach of the criminal law” or “prohibit

imposition of a certain type of punishment for a class of

defendants because of their status or offense”). Our prec-

Cite as: 578 U. S. ____ (2016) 7

THOMAS, J., dissenting

edents thus make clear the distinction between substan-

tive and nonsubstantive constitutional rules. A rule that

“because [a State] has made a certain fact essential to the

death penalty, that fact must be found by a jury,” is not

substantive; it had no effect on the “range of conduct a

State may criminalize.” Schriro, 542 U. S., at 353–354.

But a rule in which this Court “ma[de] a certain fact es-

sential to the death penalty . . . would be substantive”; it

would change the range of conduct warranting a death

sentence. Id., at 354.

Under these principles, Johnson announced a new

constitutional rule, but it is not substantive. Johnson’s

new constitutional rule is that a law is unconstitutionally

vague if it “requires a court to picture the kind of conduct

that the crime involves in ‘the ordinary case,’ and to judge

whether that abstraction presents a serious potential risk”

of some result. 576 U. S., at ___ (slip op., at 4). Such laws

are vague because they simultaneously create “indetermi-

nacy about how to measure the risk posed by a crime with

indeterminacy about how much risk it takes for the crime

to qualify” as the described offense. Id., at ___ (slip op., at

6). Together, those two indeterminacies “produc[e] more

unpredictability and arbitrariness than the Due Process

Clause tolerates.” Ibid.

But that rule is not substantive under our precedents.

It does not preclude the Government from prohibiting

particular conduct or deem any conduct constitutionally

protected. The Government remains as free to enhance

sentences for federal crimes based on the commission of

previous violent felonies after Johnson as it was before.

Cf. Butler v. McKellar, 494 U. S. 407, 415 (1990) (deciding

that a new rule was not substantive because “[t]he pro-

scribed conduct” was “capital murder, the prosecution of

which is, to put it mildly, not prohibited by the rule”). Nor

does Johnson’s vagueness rule place any class of persons

or punishment off limits. There is no category of offender

8 WELCH v. UNITED STATES

THOMAS, J., dissenting

that Congress cannot subject to an enhanced sentence

after Johnson. See James v. United States, 550 U. S. 192,

230 (2007) (Scalia, J., dissenting) (Congress “very easily”

could “subjec[t] all repeat offenders to a 15-year manda-

tory minimum prison term” in differently worded statute

(emphasis deleted)). The only constraint Johnson imposes

is on the manner in which the Government can punish

offenders. To avoid “fail[ing] to give ordinary people fair

notice” or “invit[ing] arbitrary enforcement,” 576 U. S., at

___ (slip op., at 3), Congress must be clearer in describ-

ing what conduct “otherwise . . . presents a serious poten-

tial risk of physical injury to another.” 18 U. S. C.

§924(e)(2)(B)(ii).

2

Johnson also does not fit within the second type of

substantive rule this Court has recognized, which consists

of “decisions that narrow the scope of a criminal statute

by interpreting its terms.” Schriro, 542 U. S., at 351;

see id., at 351–352 (contrasting these rules with “constitu-

tional determinations” that rule out punishing conduct or

persons).

The Court has invoked this subset of new rules just

once, in Bousley v. United States, 523 U. S. 614 (1998).

Bousley held that Bailey v. United States, 516 U. S. 137

(1995), which interpreted a federal firearms sentencing

enhancement to require proof of “ ‘active employment of

the firearm’ ” as an element, applied retroactively. 523

U. S., at 616–617. The Court explained that Teague’s bar

on retroactively applying “procedural rules” is “inapplic-

able to the situation in which this Court decides the mean-

ing of a criminal statute enacted by Congress.” 523 U. S.,

at 620. Moreover, the Court reasoned, “decisions of this

Court holding that a substantive federal criminal statute

does not reach certain conduct” share a key commonality

with “decisions placing conduct beyond the power of the

Cite as: 578 U. S. ____ (2016) 9

THOMAS, J., dissenting

criminal law-making authority to proscribe”: both “neces-

sarily carry a significant risk that a defendant stands

convicted of an act that the law does not make criminal.”

Ibid. (internal quotation marks omitted). The Court thus

classified decisions “holding that a substantive federal

criminal statute does not reach certain conduct” as sub-

stantive. Ibid.

I would not so readily assume that Bousley applies here.

Until today, Bousley applied only to new rules reinterpret-

ing the text of federal criminal statutes in a way that

narrows their reach. Johnson announced no such rule. It

announced only that there is no way in which to narrow

the reach of the residual clause without running afoul

of the Due Process Clause. 576 U. S., at ___–___ (slip op.,

at 10–12).

The majority protests that applying different retroactiv-

ity principles to constitutional and statutory rules pro-

duces “unusual outcomes” because a decision interpreting a

statute’s text to narrow its scope may be retroactive, while

a decision declaring the provision unconstitutional might

not be. Ante, at 14. But such outcomes are an inevitable

byproduct of the Court’s retroactivity jurisprudence, not a

unique consequence of this case. Take a statute allowing

the Federal Government to prosecute defendants for “seri-

ous crimes involving interstate commerce” of which they

were acquitted in state court. See Bartkus v. Illinois, 359

U. S. 121 (1959) (no double jeopardy bar to such prosecu-

tions). Suppose the Court, concerned that there might be

a double jeopardy problem after all, narrowed the meaning

of “serious crimes involving interstate commerce” to en-

compass only felonies that would be subject to a statutory

maximum sentence of life imprisonment. Anyone acquit-

ted of a minor felony by the State but convicted by the

Federal Government before this Court’s narrowing con-

struction could, in the majority’s view, seek relief on col-

lateral review under Bousley. See ante, at 14. But if the

10 WELCH v. UNITED STATES

THOMAS, J., dissenting

Court ruled that the Double Jeopardy Clause bars all

federal reprosecutions, I doubt that rule would be retroac-

tive. That rule dictates when a defendant may be tried

and convicted of certain conduct—not the substance of the

crime for which the defendant is tried, or the punishment

imposed.

The Court’s historical justifications for retroactivity

underscore the reasons for treating statutory and constitu-

tional rules differently. The Court in the 1950’s “ex-

tend[ed] the scope of habeas to all alleged constitutional

errors” to “forc[e] trial and appellate courts in both the

federal and state system to toe the constitutional mark” in

the face of perceived systemic violations. Mackey v. United

States, 401 U. S. 667, 687 (1971) (Harlan, J., concurring

in judgments in part and dissenting in part). That devel-

opment led to the Teague framework allowing retroactivity

for certain types of constitutional rules. See Montgomery

v. Louisiana, 577 U. S. ___, ___–___ (2016) (Scalia, J.,

dissenting) (slip op., at 2–3) (recounting history). But this

Court has never suggested that lower courts had similar

difficulties in interpreting the reach of criminal statutes,

such that the retroactivity rules should be the same.

Rather, the history suggests that the failure to apply a

narrowing construction of a criminal statute is a qualita-

tively different type of error.

B

The majority instead determines whether a rule is

substantive by looking to the “function of the rule,” ante,

at 10, and asking “whether the new rule itself has a proce-

dural function or a substantive function,” ante, at 11. This

apparently means that courts should divine the effect of a

new rule and decide whether that effect alters the sub-

stantive elements of a crime or sentence. All that matters,

the majority says, is that the vagueness rule announced in

Johnson had the effect of invalidating the residual clause

Cite as: 578 U. S. ____ (2016) 11

THOMAS, J., dissenting

and, as a result of its invalidation, the residual clause “can

no longer mandate or authorize any sentence.” Ante, at 9

(“striking down the residual clause” is what “changed the

substantive reach of [ACCA]”).

That approach is untenable. It brushes aside the rule of

decision, which is where all of our prior precedents begin

and end for purposes of applying Teague. When deciding

whether rules are substantive, our cases have homed in on

the rule that would apply not just to the specific statute at

hand, but in similar, future circumstances. Thus, just this

Term, the Court defined the rule announced in Miller v.

Alabama, 567 U. S. ___ (2012), as: The Eighth Amend-

ment “prohibit[s] . . . mandatory life without parole for

juvenile offenders”—not that Alabama’s juvenile-

sentencing statute flouts the Eighth Amendment. Mont-

gomery, supra, at ___ (slip op., at 14). Likewise, the rule

announced in Ring v. Arizona, 536 U. S. 584 (2002), was

that “a sentencing judge, sitting without a jury, [may not]

find an aggravating circumstance necessary for imposition

of the death penalty”—not that provisions of Arizona’s

death penalty statute violate the Sixth Amendment.

Schriro, 542 U. S., at 353 (internal quotation marks omit-

ted; alteration in original). By jettisoning that approach

and focusing solely on Johnson’s effect (the invalidation

of the residual clause), the majority departs from our

precedents.

The majority’s focus on the effect of a decision breaks

down all meaningful distinctions between “new” and “old”

rules, or “substantive” and “procedural” ones. The first

step of the Teague inquiry assesses whether the rule

is “new” by looking to whether prior precedents dictated

the rule of decision—not its effects. See, e.g., Chaidez v.

United States, 568 U. S. ___, ___ (2013) (slip op., at 4)

(internal quotation marks omitted). But if, as the majority

contends, the “function of the rule,” ante, at 10, is the relevant

baseline, then every case invalidating a statute or a sen-

12 WELCH v. UNITED STATES

THOMAS, J., dissenting

tence establishes a “new” rule. The law’s invalidation

would be a departure from any prior decision that inter-

preted the law as if it were operative. Likewise, if any

decision has the effect of invalidating substantive provi-

sions of a criminal statute, it is a substantive rule under

the majority’s approach no matter what the reason for the

statute’s invalidation.

The majority denies that “every decision striking down a

statute is ipso facto a substantive decision,” saying that

only when a decision invalidates a provision that “regu-

lates conduct and prescribes punishment” is it retroactive.

Ante, at 14. But that still transforms innumerable proce-

dural rules into substantive ones. Take a state law that

defines the crime of robbery and specifies that only 10 of

the 12 jurors need to vote to convict someone of that crime.

If this Court were to reverse Apodaca v. Oregon, 406 U. S.

404 (1972), and hold that the Sixth Amendment requires

unanimous jury verdicts, the portion of the statute allow-

ing nonunanimity would be invalid. But assume that the

state statute was nonseverable: the Court’s jury unanim-

ity rule, undoubtedly “procedural,” would have the effect of

invalidating not only the portion of the state statute re-

garding unanimity but also the provision defining the

crime of robbery, a provision that “regulates conduct.”

Ante, at 14. To the majority, these effects would make the

rule substantive. That approach is mistaken, and would

also produce arbitrary results. Suppose most States had

similar statutes, but that some had robust severability

provisions and others did not. In some States, the decision

would be procedural; elsewhere, it would be substantive,

producing a patchwork of statute-specific outcomes.

Finally, the majority flips Teague on its head with its

alternative contention that Johnson must have announced

a substantive rule because it is “not a procedural decision.”

Ante, at 9. Teague is a general rule against retroactivity,

see ante, at 7–8, and all new rules are barred unless they

Cite as: 578 U. S. ____ (2016) 13

THOMAS, J., dissenting

fit within the exceptions for substantive or “watershed”

procedural rules. 489 U. S., at 310–311 (plurality opin-

ion). To say that a rule is “not . . . procedural” is not

enough. And even if it were, the rule in Johnson fits

better within the Court’s descriptions of procedural rules

than substantive ones. “Procedural rules . . . are designed

to enhance the accuracy of a conviction or sentence by

regulating ‘the manner of determining the defendant’s

culpability.’ ” Montgomery, 577 U. S., at ___ (slip op., at 9)

(quoting Schriro, supra, at 353). And the rule in Johnson

regulates only the manner in which Congress defined a

sentencing enhancement, not the conduct that triggers the

punishment. E.g., Smith v. Goguen, 415 U. S. 566, 572–

573 (1994) (vagueness doctrine “requires legislatures to

set reasonably clear guidelines” to give “fair notice or

warning” and “prevent arbitrary and discriminatory en-

forcement” (internal quotation marks omitted)).

III

Today’s opinion underscores a larger problem with our

retroactivity doctrine: The Court’s retroactivity rules have

become unmoored from the limiting principles that the

Court invoked to justify the doctrine’s existence. Under

Teague itself, the question whether Johnson applies retro-

actively would be a straightforward “No.” If this question

is close now, that is only because the Court keeps moving

the goalposts.

As the majority observes, the foundations of our ap-

proach to retroactivity in collateral review come from

Justice Harlan’s separate opinions in Desist v. United

States, 394 U. S. 244 (1969), and Mackey v. United States,

401 U. S. 667. Ante, at 7. There, Justice Harlan con-

fronted a now-familiar problem: how to address the con-

sequences of an ever-evolving Constitution. He responded

with an approach to retroactivity that placed at the fore-

front the need for finality in the criminal process. See, e.g,

14 WELCH v. UNITED STATES

THOMAS, J., dissenting

401 U. S., at 682–683. In his view, very few rules that

emerged after a prisoner’s conviction—including constitu-

tional rules—warranted disturbing that conviction. See

id., at 686–692. Justice Harlan saw only “two exceptions”:

“bedrock procedural” rules, id., at 692–693, and “[n]ew

‘substantive due process’ rules” removing “certain kinds of

primary, private individual conduct beyond the power of

the criminal law-making authority to proscribe,” id., at

692. As examples of the latter category, he cited such

rules as that the First Amendment forbids criminalizing

flag burning, that the right to privacy precludes the Gov-

ernment from prosecuting distributors of contraception,

and that the “freedom to marry” and equal protection

principles immunize couples from being punished for

entering into interracial marriages. Id., at 692, n. 7.

These “ ‘substantive due process’ rules,” Justice Harlan

explained, were “on a different footing” because “the writ

has historically been available for attacking convictions on

such grounds.” Id., at 692–693. Moreover, society has an

“obvious interest in freeing individuals for punishment for

conduct that is constitutionally protected.” Id., at 693.

And granting relief for such claims would not require

retrials. Ibid.

When Teague adopted Justice Harlan’s approach, see

489 U. S., at 310 (plurality opinion), it agreed that to

preserve “the principle of finality which is essential to the

operation of our criminal justice system,” id., at 309, “new

rules generally should not be applied retroactively to cases

on collateral review,” id., at 305. Teague thus adopted

Justice Harlan’s two exceptions for “watershed rules of

criminal procedure” and rules that “accord constitutional

protection to . . . primary activity.” Id., at 311; see id., at

310.

The Court then swiftly discarded the limitations that

Teague adopted. Penry proclaimed the retroactivity of

rules barring certain punishments, even though the

Cite as: 578 U. S. ____ (2016) 15

THOMAS, J., dissenting

Court’s constant revision of the Eighth Amendment pro-

duces an “ever-moving target of impermissible punish-

ments.” Montgomery, 577 U. S., at ___ (slip op., at 11)

(Scalia, J., dissenting) (emphasis deleted); see id., at ___–

___ (slip op., at 10–11). Bousley extended retroactive relief

for federal prisoners raising statutory claims, not just

constitutional ones. See 523 U. S., at 616–617, 620–621.

Montgomery extended Teague to state postconviction

proceedings, enshrined Teague as a constitutional com-

mand, and redefined substantive rules to include rules

that require sentencers to follow certain procedures in

punishing juveniles. Now the majority collapses Teague’s

substantive-procedural distinction further, allowing any

rule that has the incidental effect of invalidating substan-

tive provisions of a criminal statute to become a substan-

tive rule.

Today’s decision, like those that preceded it, professes to

venerate Justice Harlan’s theory of retroactivity. See

ante, at 7; Montgomery, supra, at ___ (slip op., at 8–10).

This rings hollow; these decisions spell its ruin. The Court

adopted Justice Harlan’s approach to retroactivity because

it shared his conviction that “there [must] be a visible end

to the litigable aspect of the criminal process.” Mackey,

supra, at 690; see Teague, supra, at 310 (plurality opinion)

(similar). With the Court’s unprincipled expansion of

Teague, every end is instead a new beginning.

* * *

For these reasons, I respectfully dissent.