# Amicus Curiae Brief — Selvage v. Collins

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1481%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 108

## Text

— ee ee) a ee —- Ee ———— ———— Oe a — Ve

Question Presented

At the time petitioner was tried, was there “cause” for not
raising a claim based upon arguments later accepted in Penry v.
Lynaugh, No. 87-6177 (June 26, 1989); and if not, would the
application of a procedural bar to the claim result in a “fun-
damental miscarriage of justice,” Smith v. Murray, 477 U. S.
478 (1986)?

TABLE OF CONTENTS
Table of Authorities Cited 2.0... ccc cece rene iv
DMG oni geccccetoesesceceenes 1
Summary of Factsand Case ... 0. ccc cee eee 2
PEE wccccc cee cee eee eee seees 4
I
Stability and clarity are desperately needed in the procedural
DT Suceeecetcesevecacesoveeses 5
oh ae
Only genuinely new rules are sufficiently novel to constitute
“couse” wader Reed v. Ross ........002ccceceee 8
Ill
New procedural rules ate almost never retroactive on habeas
DED oe eeceecscascecssees eesees 13
IV
Any claim which is “novel” under Reed is necessarily “new”
SEE Ke eee ees ceccereneapeeeres 17
A. The basic rule of preclusion ............... 17
B. The timing exception... . 2... 6.6 ee ee eee 20
C. Fundamental v. Nonfundamental Rules ....... 21
D. Procedural Default v. “Merits” ............. 23
PTE Bdeecudeetececcee-soewen 24
V
“Fundamental miscarriage of justice” must be based on
SPEED Cece ccc ccc esccceseces 25

Table of Authorities

Amadeo v. Zant, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988) .6,8
Batson v. Kentucky, 476 U. S. 79, 90 L. Ed. 2d 69,

eS san 6 eked oe ews 6 aos 18
Bowen v. Kemp, 832 F.2d 546 (11th Cir. 1987) ........ .30
Brown v. Allen, 344 U. S. 443, 97 L. Ed. 2d 469,

I ce ek eae wk 6 O40 08 60 0 6° 5
California v. Brown, 479 U. S. 538, 93 L. Ed. 2d 934,

2. ban « Ske Ow ocd oie dis 6.66 « 16

Castille v. Peoples, 103 L. Ed. 2d 380, 109 S. Ct. 1056 (4989) . 7
Chambers v. Mississippi, 410 U. S. 284, 35 L. Ed. 2d 297,

in. 2a ea Leu ooh Gah 0610's 6.6 15
Coker v. Georgia, 433 U. S. 584, 53 L. Ed. 2d 982,
EE fae a ee Wie oa Wiele wesc oe ae
Desist v. United States, 394 U.S. 244, 22 L. Ed. 2d 248,
PURGE MEEEEEED 6 6 cone cew csc ccicsewces 15
Duckworth v. Eagan, 109 S.Ct. 2875,
ls TET ee ee 22

Dugger v. Adams, 109 S. Ct. 1211, 103 L. Ed. 2d 435 (1989) .26

Eddings v. Oklahoma, 455 U. S. 104, 71 L. Ed. 2d 1,
Te eee 3, 16, 21, 25

Engle v. Isaac, 456 U. S. 107, 71 L. Ed. 2d 783,
102 S. Ct. 1558 (1982)... ......20.. 8, 9, 10, 18, 19, 25

Enmund v. Florida, 458 U. S. 782, 73 L. Ed. 2d 1140,
102 S. Ct. 3368 (1982)... 2... eee 27, 29

Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837,
I cu dacvensccevcdes 5,6

Ford v. Wainwright, 477 U. S. 399, 91 L. Ed. 2d 335,

ee eee 15, 27
Francis v. Henderson, 425 U. S. 536, 48 L. Ed. 2d 149,

ee, cae b awed e's c's ee 6
Griffith v. Kentucky, 479 U. S. 314, 93 L. Ed. 2d 649,

I gs ot ck oes See bee eet 14, 15

Harris v. Reed, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989) ... 7
Hilton v. Braunskill, 481 U. S. 770, 95 L. Ed. 2d 724,

ee SSE ae 23
In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368,

aS 9
Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560,

ne 30
Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882,

UIE bG ers ck cee cdedeecccvcs 14
Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461 (1938) . . . .23
Jurek v. Texas, 428 U. S. 262, 49 L. Ed. 2d 929,

I ci ccc clbccadeccceces 16
Linkletter v. Walker, 381 U. S. 618, 14 L. Ed. 2d 601,

ns a ceccebccces 14
Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

98 S. Ct. 2954 (1978) ... 2.0.00... 3, 14, 16, 20, 21, 29
Mackey v. United States, 401 U. S. 667, 28 L. Ed. 2d 404,

I ee Aas os 15
Martin v. Ohio, 480 U. S. 228, 94 L. Ed. 2d 267.

107 S. Ct. 1098 (1987)... 2... ee ee eee eee. 10
Matter of Spencer, 228 U. S. 652, 57 L.Ed. 1010 (1912) ... . 5

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

404 oso © 6 WMG ul Awe 0:0 0's be 14
Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,

PE coca cavccedeccses< 6, 8, 23, 25
Penry v. Lynaugh, 109 S. Ct. 2934,

ee Passim
Quinones v. State, 592 S. W. 2d 933, cert. denied,

449 U.S. 893 (Tex. Crim. App. 1980) ............. 20
Reed v. Ross, 468 U.S. 1, 82 L. Ed. 2d 1,

CF EE ee eee Passim
Rock v. Arkansas, 483 U. S. 44, 96 L. Ed. 2d 37,

GE 15
Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

rs hs hn a a eed & an 60.6 © « 14, 22
Selvage v. Lynaugh, 842 F. 2d 89 (Sth Cir. 1988) ........ 4
Selvage v. State, 680 S. W. 2d 17 (Tex. Crim. App. 1984) .. . 3
Smith v. Murray, 477 U. S. 527, 91 L. Ed. 2d 434,

PER EOE & ecw cee pees wees 8, 18, 25, 26
Stanford v. Kentucky, 109 S. Ct. 2969,

Ee ee ee eee 27
Stone v. Powell, 428 U.S. 465, 49 L.Ed.2d 1067,

re as. he a ei ah Wee oes ole 22
Stovall v. Denno, 388 U. S. 293, 18 L. Ed. 2d 1199,

—. . + SE a ce, 14
Sumner v. Shuman, 483 U. S. 66, 96 L. Ed. 2d 56,

IE DS's > uc 0 6 ule Uru 6 alle lee Bie 16

Teague v. Lane, 109 S. Ct. 1060,
mF ee Passim

Thompson v. Oklahoma, 108 S. Ct. 2687,

TE Gn can uaweeecesccceces 28
Tison v. Arizona, 481 U. S. 137, 95 L. Ed. 2d 127,
Dy ciegucavcesesnevcecs 27, 29
United States v. Frady, 456 U. S. 152, 71 L. Ed. 2d 816,
EE ee eee ae eee 33
United States v. Johnson, 457 U. S. 537, 73 L. Ed. 2d 202,
ea eee 11
Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,
Ee ee eee 6
In re Wood, 140 U. S. 278, 35 L. Ed. 505(1891) ........ 5
Woodson v. North Carolina, 428 U. S. 280, 49 L. Ed. 2d 944,
nn oo: be one ee eas eh 60 0 6 6 6:8 16
United States Constitution
8 0 Ee 23
Treatises
1 W. Blackstone, Commentaries (1765) ............. 14
1 W. LaFave and A. Scott, Substantive Criminal Law,
eS re ae ee ee eee ee 10
Miscellaneous
ABA Criminal Justice Section, Report to the House of
PD ewes ecceetweseeeeeesecesneces 6
Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970) ..... 22

Lucas, Minority Report of ABA Task Force Co-Chairman

a i ia es

Robbins, Rationalizing Federal Habeas Corpus Review of

State Court Crimina! Convictions in Capital Cases (1989)

Scheidegger, Capital Punishment in 1987: The Puzzle Nears
Completion, 15 West. St. L. Rev. 95 (1987) .........

U.S. Bureau of Justice Statistics, Sourcebook or Criminal

Justice Statistics — 1988

me Cee Se 2 a. eS 2 2 ea ea Bee a

ae

IN THE

SUPREME COURT OF THE UNITED STATES
OcTOBER TERM, 1989

JOHN HENRY SELVAGE,

Petitioner,
vs.
JAMES LYNAUGH, Director,
Texas Department of Corrections,
Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS

The Criminal Justice Legal Foundation (CJLF)! is a non-
profit California corporation organized to participate in litiga-
tion relating to the criminal justice system as it affects the
public interest.

1. CJLF has received written consent of the parties to file this brief.

CJLF seeks to bring the due process protection of the
accused into balance with the rights of the victim and of socie-
ty to rapid, efficient and reliable determination of guilt and
swift execution of punishment.

The present case involves a collateral attack on a final
judgment based on a claim which defendant did not mention at
trial or on appeal and which is not a bedrock rule of fairness.
Such unecessary attack on the finality of criminal judgments
is contrary to the rights of victims and society which CJLF was
formed to advance.

SUMMARY OF FACTS AND CASE

On July 26, 1979, petitioner John Henry Selvage and his
accomplice Wilbur Kelly robbed a convenience store in Hous-
ton. One of the robbers, it is not known which, shot a custom-
er to death. Brief for Petitioner (“Pet. Brief”) 9-10.

Four days later, Selvage and Kelly robbed Ventura’s Jewel-
ry in Houston. One of them shot and killed Deputy Sheriff Al
Garza. Although off duty, Garza had prominently displayed
his badge prior to the shooting. It is not known which robber
fired the fatal shot. /d., at 7. After the shooting of Garza and
while they were fleeing the scene, both robbers shot at Ste-
phen Ventura, the owner of the store. /d., at 5-6. Selvage was
convicted of the murder of Deputy Garza.

In the penalty phase, the prosecution presented evidence
of the convenience store robbery and murder, of Selvage’s
prior record of drug possession and conspiracy to commit bank
robbery and of his attempted escape from jail. Jd., at 8-10.
The defense presented evidence of Selvage’s good upbringing,
of the apparently detrimental effect of his military experience
and of his potential for rehabilitation. /d., at 10-12.

The jury was instructed on the two relevant Texas special
issues, which focus first on deliberateness and expectation that
death will result and second on future dangerousness of the
defendant. J. A. 4. The jury answered both issues “yes,” ibid.,
and Selvage was accordingly sentenced to death. On direct
appeal to the state’s highest criminal court, the judgment was
affirmed. Selvage v. State, 680 S. W. 2d 17 (Tex. Crim. App.
1984).

Defense counsel did not accept the instruction in the bare
words of the statute as given. He specifically requested a sup-
plemental instruction to the effect that a non-triggerman was
completely exempt from capital punishment. J. A. 5-6. At no
time during trial Or direct appeal, however, did the defense
claim that the instructions were deficient for not allowing
mental condition or accomplice status to be considered as
mitigating factors. See J. A. 30-32; Selvage v. State, supra
(enumerating the grounds of error claimed). The trial was
conducted approximately two years after Lockett v. Ohio, 438
U. S. 586 (1978) and two years before Eddings v. Oklahoma,
455 U. S. 104 (1982). The appeal was decided two years after
Eddings.

In 1985, seven years after Lockett, Selvage filed a habeas
corpus petition in the federal district court. J. A. 70. This
petition made no claim that the jury had not been permitted to
consider mitigating factors. J. A. 46. The petition was denied,
and the denial was affirmed. J. A. 70.

On March 3, 1987, while federal proceedings were pending,
Selvage filed a state habeas petition, which was denied. J. A.
9. On March 22, 1988, ten years after Lockett but a year be-
fore Penry v. Lynaugh, 109 S. Ct. 2934, 106 L. Ed. 2d 256
(1989), Selvage filed a state habeas petition raising for the first
time the mitigation issue. The state trial court found the issue
procedurally barred, J. A. 34-35, and the Court of Criminal

4

Appeals adopted the trial court’s findings and conclusions.
J. A. 38.

On Selvage’s second federal petition, the state objected to the
mitigation question on grounds of both abuse of the writ, J. A.
45-50, and procedural bar, J. A. 51-52. The district court dis-
missed this claim but granted a stay on another claim. J. A. 63-
66. The Fifth Circuit Court of Appeals vacated the stay.
Although anticipating the holding of Penry, supra, that the
instructions might be found deficient, the court held that the
claim was procedurally barred. J. A. 81; Selvage v. Lynaugh,
842 F. 2d 89, 95 (Sth Cir. 1988).

SUMMARY OF ARGUMENT

Selvage contends that he had “cause” not to raise his claim
earlier, thus permitting consideration on federal habeas, be-
cause his claim was “novel” at that time within the meaning of
Reed v. Ros, 468 "|. S. 1 (1984). This contention canrot be
reconcileé with this Court’s decision in Penry v. Lynaugh, 109
S. Ct. 2936 106 L. Fu. 2d 256 (1989) thai the decision in Penry
did not annow ce a “new” rule within the meaning of Teague
v. Lane, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

The degree of change from prior precedent which is re-
quired for “novelty” as “cause” under Reed is substantially
greater than the degree of change which invokes the nonretro-
activity bar of Teague. Therefore, absent one of three excep-
tions not present in this case, Reed is a dead letter after
Teague. Any claim which is sufficiently novel that counsel did
not even have “the tools to construct” it at the time of trial
must necessarily not be “dictated by precedent existing at the
time.”

The “fundamental miscarriage of justice” exception, in

order to fulfill its function, must be based on an undeniable

injustice of the result and not on the procedure by which that
result was obtained. Where guilt is not in question, the penal-
ty-phase application of this exception shov'd be limited to
those grounds on which there is an overwhelming national
consensus against capital punishment.

I. Stability and clarity are desperately needed in the
procedural default area.

The procedural default rule has a long and uneven history
in this Court. Impatience with petitioners who omit claims at
trial and on appeal and then raise them on federal habeas
corpus can be seen as far back as In re Wood, 140 U. S. 278,
288-289 (1891) and Matter of Spencer, 228 U. S. 652 (1912).
“If defenses may be omitted at trials, rights of review omitted,
and yet availed of through habeas corpus, the whole course of
criminal justice will be deranged and, it may be, defeated.” /d.,
at 661.

Stare decisis has not fared well in this area, as this Court has
swung from one extreme to the other. In Brown v. Allen, 344
U. S. 443, 485-487 (1953), this Court held with unmistakable
clarity that the bar of procedural default was jurisdictional and
mandatory as a corollary to the then-recently-codified exhaus-
tion rule, admitting no exceptions other than incapacity or
interference by the state. See also, Fay v. Noia, 372 U. S. 391,
461-462 (1963) (Harlan, J., dissenting). Yet Brown was over-
ruled sub silento in Fay v. Noia, supra.

Fay swung to the opposite extreme, substantially abolishing
the procedural default rule by limiting it to cases of “deliberate
by-passing of state procedures.” /d., at 439. Yet as applied in
Noia’s case, this rule was no rule at all. Noia had intentionally
decided not to appeal. He said it was to avoid financial burden
to his family; his lawyer said it was to retain the benefit of his

6

lenient sentence of life. Jd., at 396-397, n. 3. Either way, it is
difficult to conceive of a bypass more deliberate.

In a series of decisions since Fay, this Court has applied a
“cause and prejudice” test to defaults occurring before, during
and after trial. Francis v. Henderson, 425 U. S. 536 (1976) (no
challenge to grand jury composition); Wainwright v. Sykes, 433
U. S. 72 (1977) (no contemporaneous objection to evidence at
trial); Murray v. Carrier, 477 U. S. 478 (1986) (omission from
appeal). Although not explicitly overruled, there is nothing
left of Fay’s deliberate bypass test. The cause and prejudice
test now applies across the board. Amadeo v. Zant, 108 S. Ct.
1771, 1776, 100 L. Ed. 2d 249, 259-260 (1988).

The cause and prejudice rule of Wainwright v. Sykes, suprc,
is thus the resultant vector of two vehemently opposing forces.
The law of procedural defaults has swung wildly to one ex-
treme and then to the other and finally settled on a moderate
course. The product of such a long and arduous battle should
command special respect lest we begin the whole cycle again.
The basic rule should not be so riddled with exceptions that
the exceptions swallow the rule.

The Sykes rule has not been without its detractors. A criti-
cism has been strongly voiced in recent months that the indef-
inite boundaries of the rule and its exceptions make the rule
more complicated than the merits of the petition, delaying and
complicating the habeas proceeding. Chief Judge Donald P.
Lay of the Eighth Circuit expressed this view in recent hear-
ings before the Senate Judiciary Committee.” The ABA
Criminal Justice Section has voiced a similar criticism. ABA

2. November 8, 1989. As of this date there does not appear to be a
published transcript of this testimony.

7

Criminal Justice Section, Report to the House of Delegates
24-26 (“ABA Report”).°

There are three possible solutions to the complication of
the rule: (1) abandon the rule and return to Fay v. Noia; (2)
abandon the exceptions and return to Brown v. Allen; or (3)
clarify the rule and limit the exceptions. The opponents of
capital punishment naturally call for restoration of Fay. See
Robbins, Rationalizing Federal Habeas Corpus Review of
State Court Criminal Convictions in Capital Cases 71-73
(1989) (background paper for ABA Task Force). Others favor
the third alternative. See Lucas, Minority Report of ABA
Task Force Co-Chairman 11 (1989) reprinted in ABA Report,
supra, A-2, A-12. Whatever may be the legislative outcome of
this debate, the compelling stare decisis considerations dis-
cussed above point clearly to the third option as the path of
judicial development.

The scope of the rule itself was significantly clarified last
term. If the claim was presented to the state court, it is only
barred if the state court makes a plain statement to that effect.
Harris v. Reed, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989). If
not presented to the state courts, it is barred if state law clearly
bars it. See Teague v. Lane, 109 S. Ct. 1060, 1067-1069, 103 L.
Ed. 2d 334, 346-348 (1989). Habeas claims never presented to ~
the state courts are not exhausted, however, unless “it is clear
that [the] claims are now procedurally barred under [state]
law.” Castille v. Peoples, 109 S. Ct. 1056, 1060, 103 L. Ed. 2d
380, 387 (1989) (italics added). If a claim is not exhausted, the
petition should be dismissed on that ground. /d., at 1059, L.
Ed. 2d at 385. The state court proceeding which follows dis-

3. This report bears no title other than the above; it is dated February,
1990, even though it was announced in a press release dated November
27, 1989. It is available from the ABA Criminal Justice Section, Wash-
ington, D. C.

missal for nonexhaustion should produce the plain statement
required by Hams.

Other cases have done much to clarify what constitutes
“causé.” The quintessential “cause” is intentional conceal-
ment by state officials of the evidence underlying the claims.
See Amadeo v. Zant, 108 S. Ct. 1771, 1777, 100 L. Ed. 2d 249,
260 (1988). Ineffective assistance of counsel is also cause.
Murray v. Carrier, 477 U. S. 478, 488 (1986). However, the
failure of effective counsel to recognize an available factual or
legal basis for a claim is not cause. /Jd., at 486. Neither is an
inadvertent failure to raise the issue on appeal, id., at 488, nor
a deliberate tactical decision not to pursue a claim, Smith v.
Murray, 477 U. S. 527, 534 (1986).

There remain three principal areas of confusion. The first
is when a state procedural bar is not “adequate” despite a
plain statement of the state court. The second is the use of
novelty of the claim as cause. The third is the scope of the
“fundamental miscarriage of justice” exception as applied to
sentencing. This case involves the second and third issues,‘
and it can clear up much of the complexity and confusion.

II. Only genuinely new rules are sufficiently novel tc
constitute “cause” under Reed v. Ross.

The issue of novelty of the argument as “cause” under
Sykes is bracketed by the decisions in Engle v. Isaac, 456 U. §
107 (1982) and Reed v. Ross, 468 U.S. 1 (1984). Both cases
involved claims that jury instructions had unconstitutionally
shifted the burden of proof to the defendant.

4. The first issue is not mentioned in either the questions presented in the
petition for certiorari or this Court's restatement of question | in the
order granting certiorari.

9

In Engle, the defendants claimed self-defense. The juries
had been instructed, without objection, that the defense had
the burden of proof. The Ohio Supreme Court later decided,
as a matter of statutory interpretation, that the prosecution
had the burden of proof, 456 U. S., at 111, but upheld its state
procedural bar against defendants who had not objected at
trial, id., at 116. Isaac and the others contended on federal
habeas that regardless of the interpretation of the statute
“Ohio could not constitutionally shift the burden of proving
self-defense to them.” /d., at 121.

Isaac put forth precisely the same reasons for default which
Selvage proffers in the present case: novelty and futility. /d.,
at 130. The Court dealt with futility in no uncertain terms.
Futility “cannot alone constitute cause ....” I/d., at 130 (ital-
ics added). No matter how solid the wall of authority, the state
court must be presented with the opportunity to overrule that
authority before that argument can be the basis of a federal
claim that the prisoner is unconstitutionally detained.

While Isaac’s claita of novelty was also rejected, that rejec-
tion was not categorical. /d., at 13i. The test adopted was
whether the tools to construct the constitutional claim were
available to the defense. /d., at 133. The necessary tool had
been provided years before the trial by /n re Winship, 397 U. S.
358 (1970). Engle, at 131.

To evaluate this “tools” test, it is important to recognize
how broad a gap exists between Winship and Isaac's claim.
The holding of Winship is “that the Due Process Clause pro-
tects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” Winship, 397 U. S., at 364.
isaac did not deny that he had knowingly caused serious physi-
cal harm to another, the facts constituting the crime. Engle, at
114, n. 12. His defense was that his actions were justi ied by
self-defense. /d., at 114. There is an important difference

10
between requiring the state to prove the offense and requiring
it to disprove a defense. Martin v. Ohio, 480 U. S. 228, 231-

234 (1987) explains this difference at length.

For an earlier case to have provided the tools to construct a
claim, then, the claim need not follow directly or inevitably
from that case. Reasonable people may differ as to whether
the case supports the claim. There may be contrary precedent
on point. See Engle, 456 U. S., at 133, n. 41.

The claim need not be so obvious that every competent
attorney raises it. If significant numbers of lawyers are making
the claim, even though many or most are not, then the tools
exist. In that event, there is no “cause” for not raising the
claim. /d., at 133-134.

In Reed v. Ross 468 U. S. 1 (1984), the jury in a murder case
was instructed that use of a gun raises a presumption of malice
shifting the burden of proof to the defendant. /d., at 6-7. The
argument against this instruction would seem on its face to be
considerably /ess novel than the argument advanced in Engle.
Malice is traditionally an element of murder to be proved by
the prosecution, while self-defense is the kind of affirmative
defense which many jurisdictions have required the defendant
to prove. See i W. LaFave and A. Scott, Substantive Criminal
Law § 1.8(c), 71-78 (1986). The Reed court distinguished
Engle by the fact that the trial in Reed had occurred before
Winship. Reed, 468 U. S., at 19-20.

Novelty will constitute cause “where a constitutional claim
is SO novel that its legal basis is not reasonably available to
counsel.” /d., at 16. The most common instance of a claim
without a pre-existing “reasonable basis” is where “this Court
has articulated a constitutional principle that had not been
previously recognized but which is held to have retroactive ap-
plication.” Id., at 17 (italics added). Reed then equates “not
previously recognized” with the “clear break with the past”

11

test. Ibid. This “clear break” language is taken from United
States v. Johnson, 457 U. S. 537 (1982), where the Court indi-
cated that “clear break” cases are “decisions whose nonretro-
activity is effectively preordained.” Id., at 553-54.

Reed then identifies three categories of clear breaks, still —
relying on Johnson. The simplest and most obvious is a deci-
sion of the Supreme Court overruling one of its own prece-
dents. 468 U.S., at 17. “Second, a decision may ‘overtur[n] a
longstanding and widespread practice to which this Court has
not spoken, but which a near-unanimous body of lower court
authority has expressly approved.’ ” IJbid., quoting Johnson
(italics added). These two categories should cause little diffi-
culty for reasons we will explain below.* ©

The principal problem lies in the third category, where a
“decision may ‘disapprovie] a practice this Court arguably has
sanctioned in prior cases.’ Jbid., quoting Johnson (italics
added). This is a very vaguely defined category. Given the
volume of this Court's opinions, the divergence of views
among its Members and the creativity of lawyers in extrapolat-
ing from opinions, a vast array of practices might be said to
have been arguably sanctioned.

The test of novelty applied to this category is even more
vague.

“Whether an attorney had a reasonable basis for press-
ing a claim challenging a practice that this Court has
arguably sanctioned depends on how direct this
Court's sanction of the prevailing practice had been,
how well entrenched the practice was in the relevant
jurisdiction at the time of defense counsel's failure to
challenge it, and how strong the available support is

S. See part IV A at p. 11, infra.

12

from sources opposing the prevailing practice.” Jd., at
17-18.

The litigation-breeding potential of this test is apparent. It
bears more than a passing resemblance to the “test” for retro-
activity which this Court has since abandoned as unworkable.
See Teague v. Lane, 109 S. Ct. 1060, 1070-1072, 103 L. Ed. 2d
334, 350-352 (criticism of the Linkletter standard).

The threads of retroactivity are woven throughout the fab- ~

ric of Reed v. Ross. They show clearly in all three of the opin-
ions filed in that case. The Reed majority noted that retroac-
tivity was a distinguishing characteristic of the primary catego-
ry of cases to which its rule applied. Reed, supra, 468 U. S.., at
17. The majority also lifted its “clear break” test directly out
of retroactivity iaw. bid.

Justice Powell rested his deciding vote on the state’s own
procedural default in not raising the retroactivity issue. /d., at
20. Had the state only raised the issue, Reed would have gone
the other way.

The dissent noted the paradoxical result of considering
“novelty” as “cause” without considering retroactivity:

“Consequently, we have the anomalous situation of a
jury verdict in a case tried properly by then-prevailing
constitutional standards being set aside because of
legal developments that occurred long after the North
Carolina conviction became final.

“Like the Court of Appeals, the Court proposes to
adopt ‘novelty’ as a possible form of ‘cause’ under
Wainwright v. Sykes to justify ignoring the State's
procedural default rule. But this equating of novelty
with cause pushes the Court into a conundrum which it
refuses to recognize. The more ‘novel’ a claimed con-
stitutional right, the more unlikely a violation of that

13

claimed right undercuts the fundamental fairness of
the trial.” /d., a 21-22 (Rehnquist, J., dissenting).

The correction to the anomaly and the solution to the
conundrum, we submit, is to always consider retroactivity with
any Reed claim. When this is done within the structure of
Teague v. Lane, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the
difficulties anticipated by the Reed dissent disappear, and the
question of fundamental fairness will become central to the
decision.

III. New procedural rules are almost never retroactive
on habeas under Teague.

The essence of a habeas petitioner’s Reed claim is that the
law has changed in an unexpected way and that he should not
be “punished” for a lack of clairvoyance. But are the people
of a state not entitled to make the same claim? Should a
judgment that was perfectly legal when entered be set aside
because a court did not follow a procedure which it had no
obligation to follow at the time? The people’s side of the
unexpected change ledger is the issue of retroactivity. The
crux of this case is the inconsistency between defendant's claim
of novelty and the holding of Penry v. Lynaugh, 109 S. Ct.
2934, 106 L. Ed. 2d 256 (1989) on the retroactivity question.

Teague v. Lane, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)°
is the culmination cf this Court’s long and difficult struggle
with the question of how far back a new decision should reach
in undoing the work of judges, lawyers and juries who had duly
obeyed the rules in effect at the time. Whenever a rule is not
applied retroactively, the contention is made that the Court

6. Teague is a plurality opinion, but its rule was accepted by a majority in
Penry v. Lynaugh, 109 S. Ct. 2934, 2944, 106 L. Ed. 2d 256, 274 (1989).

14

has sanctioned a constitutionally flawed conviction or denied
someone his constitutional rights. See, e.g., Johnson v. New
Jersey, 384 U. S. 719, 736 (1966) (Black, J., dissenting). That
would be true if one subscribed to the Blackstonian belief that
the Court merely discovers pre-existing law and does not make
new law. See 1 W. Blackstone, Commentaries 69-70 (1765).
However attractive the Blackstone approach may be in theory,
it loses any connection with reality when applied to require-
ments as far removed from the text and history of the Consti-
tution as the Miranda warnings, the exclusionary rule or the
rule of Lockett v. Ohio, 438 U. S. 586 (1978).

There are, no doubt, people in prison today who were con-
victed before Miranda v. Arizona, 384 U. S. 436 (1966) based
largely on voluntary confessions obtained without the now-
required warnings. Yet their continued incarceration is not
the result of any denial of any constitutional right. The pris-
oner was legally convicted because the right to warnings simply
did not exist at the time; this Court created that right in Mi-
randa. There may be doubts about the legitimacy of creating
“constitutional” rights so far removed from either the text or
fundamental fairness, see Rose v. Lundy, 455 U. S. 509, 543-
544, n. 8 (1982) (Stevens, J., dissenting), but no realistic ap-
praisal can deny that that is what the Miranda Court actually
did.

With the recognition that some rules are genuinely “new”
came a need to decide how far back to apply these new rules.
A three-part test to be applied separately to ench new rule was
laid down in Linkleiter v. Walker, 381 U.S. 618 (1965) and
Stovall v. Denno, 388 U. S. 293, 297 {1967). This test was
heavily dependent on the value judgments of the judges apply-
ing it, however, and application of it was inconsistent. Sec
Teague, supra, 109 S. Ct., at 1072, 103 L. Ed. 2d, at 352.

In Griffith v. Kentucky, 479 U. S. 314 (1987) and Teague v.
Lane, supra, the Linkletter-Stovall approach was replaced by

15

the approach suggested by Justice Harlan in Desist v. United
States, 394 U. S. 244, 256-269 (1969) (dissent) and Mackey v.
United States, 401 U. S. 667, 675-702 (1971) (separate
opinion). All new rules now apply to all cases on direct review,
Griffith, 479 U. S., at 323, and with two rare exceptions do not
apply to cases which became final prior to the announcement
of the rute, Teague, 109 S. Ct., at 1075, 103 L. Ed. 2d, at 356.

The first step in a Teague analysis is to determine whether a
rule is “new.” “In general . . . a case announces a new rule
when it breaks new ground or imposes a new obligation on the
States or the Federal Government.” /d., at 1070, L. Ed. 2d, at
349. The examples given illuminate the meaning of this sen-
tence. Rock v. Arkansas, 483 U. S. 44 (1987) broke new
ground by extending the right to present a defense, established
in Chambers v. Mississippi, 410 U. S. 284 (1973), into the
previously uncharted territory of hypnotically refreshed testi-
mony. Ford v. Wainwright, .'77 U. S. 399 (1986) imposed a new
obligation on the states by constitutionalizing the long-
estabuished common-law prohibition of execution of the in-
sane. Neither claim was novel. Chambers and the common
law provided ample tools to construct the respective claims.
Yet both are “new rules” under Teague.

The Teague Court's alternative formulation of newness is
more emphatic. “To put it differently, a case announces a new
rule if the result was not dictated by precedent existing at the
time the defendant’s conviction became final.” 109 S. Ct., at
1070, 103 L. Ed. 2d, at 349 (italics in original). Because no
precedent existing at that time could be said to dictate that the
fair cross-section requirement extended to the petit jury, such
an extension would be a new rule. /bid.

Penry v. Lynaugh, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989)
presented an unusual twist on the newness problem. The
difficulty in the question presented in Penry was not caused by
a dearth of authority but rather by an excess. A tension exist-

16

ed between two lines of cases decided by this Court, see Cali-
fornia v. Brown, 479 U. S. 538, 544 (1987) (O’Connor, J.,
concurring), and either side could construct a reasonable
argument using one of the two lines.

In Woodson v. North Carolina, 428 U. S. 280, 304 (1976), a
plurality held that capital sentencing must take into account
relevant facets of the defendant's character and record, includ-
ing “compassionate or mitigating factors stemming from the
diverse frailties of humankind.” In Lockett v. Ohio, 438 U. S.
586, 604 (1978), the plurality found a constitutional require-
ment that “the sentencer . . . not be precluded from consider-
ing as a mitigating factor, any aspect of a defendant's character
or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.”’
Eddings v. Oklahoma, 455 U. S. 104, 110 (1982) raised the
Lockett plurality rule to majority status.

Taking these authorities alone, the Penry case would have
been a foregone conclusion. Asking the jurors to decide if the
murder was deliberate, if the defendant will be dangerous in
the future and if the defendant overreacted to any provocation
did noi permit consideration as mitigation of Penry’s abused
childhood, precisely the type of mitigation that Eddings had
heid must be considered. 455 U. S., at 113-115. The problem
was that the Texas system of ashig only these three questions
had been sustained against a facial attack in Jurek v. Texas, 428
U. S. 262 (1976). Four Justices of this Court believed that
Jurek and not Eddings dictated the result. Penry, 10° S. Ct., at
2965, 106 L. Ed. 2d, at 300 (Scalia, J., dissenting in part).

7. Ttaiics in original. A footnote at this point reserves the life prisoner
question subsequently decided in Sumner v. Shuman, 483 U.S. 66
(1987).

17

The “newness” issue in Penry and the merits of the decision
thus both turn on the interpretation of Jurek. Penry says that
Jurek did not give a blanket endorsement to the Texas manner
of instructing the jury without regard to whether those instruc-
tions permitted consideration of all mitigating evidence prof-
fered in a particular case. Rather, says Penry, Jurek was based on
an assurance, not fulfilled in Penry’s case, that all such evidence
would be considered. /d., at 2946-2947, L. Ed. 2d, at 278. If Penry
is new then it is also wrong on the merits.® If Penry is correct on
the merits, then its interpretation of Jurek must also be correct.
Penry therefore does not “gut” Teague, see id., at 2965, L. Ed. 2d,
at 301 (Scalia, J., dissenting in part), but rather leaves it un-
touched. A rule is new if it is not dictated by prior precedent.
Accepting the Penry majority’s interpretation of Jurek, Penry is
indeed dictated by Lockett-Eddings.

IV. Any claim which is “novel” under Reed is
necessarily “new” under Teague.

A. The Basic Rule of Preclusion.

When the definition of “new rules”

is juxtaposed with the definition of

“novel claims” we can see that “novel” “Cae
is a subset of “new.” That is, any claim
which is “novel” under Reed must
necessarily be “new” under Teague, at
least if newness and novelty are deter-

mined as of the same time. The con-

verse, however, is not necessarily true.
Most claims will cease to be novel under Reed long before the
rules they propose cease to be new under Teague.

8. Defendant's interpretation of Jurek, Pet. Brief 57-58, is essentially the same
as that of the Penry dissent.

18

Returning to the three categories of potentially novel
claims outlined in Reed v. Ross, 468 U.S. 1, 17 (1984), the first
category is a square overruling by this Court of one of its own
precedents. While Reed correctly notes that a claim based on
the overruling case would be novel, ibid., there can also be no
doubt that such a claim would be new under Teague. See
Teague, 109 S. Ct., at 1067, 103 L. Ed. 2d, at 345-346 (reaffirm-
ing nonretroactivity on habeas of Batson v. Kentucky, 476 U. S.
79 (1986)).

The second category requires that the disapproved practice
had been both longstanding and widespread and had been
approved by a nearly unanimous body of lower court opinion.
Reed, at 17. Again, there can be no question that the disap-
proval of such a body of case law would be a new rule under
Teague.”

The present case fits in the third category: disapproval of a
practice arguably sanctioned by past Supreme Court cases.
Ibid. The prior sanction of the disapproved practice is certain-
ly arguable if the argument was accepted by four Justices of
this Court, see Penry v. Lynaugh, 109 S. Ct. 2934, 2965-2967,
106 L. Ed. 2d 256, 301-303 (1989) (Scalia, J., dissenting in
part). Yet arguable sanction alone is not enough for novelty.
Reed also considers directness of the sanction, entrenchment
of the practice in the relevant jurisdiction and strength of
available support for opposing the pri. -tice.

Comparing Reed with Engle v. Isaac, 456 U.S. 107 (1982),
it is apparent that the entrenchment factor cannot alone make
a claim novel. Engle held that even complete futility cannot

alone constitute cause, id., at 130, and this holding was reaf-)

firmed after Reed in Smith v. Murray, 477 U. s $27, 535

9. The present case does not fall into this category, as the Tex.)s practice is
not widespread. Defendant says it is unique. Pet. Brief 65.

19

(1986). Reed also considers the directness of this Court’s sanc-
tion of the practice, but if the sanction were truly direct the
case would fall into the first category (outright overrul.ag) and
not the third. :

The principal focus, then, must be on “how strong the
available support is from sources opposing the prevailing prac-
tice.” Reed, 468 U.S., at 17-18. This focus is consistent with
Engle and Smith, because the basic question is whether de-
fense counsel had the tools to construct the claim, Engle, 456
U. S., at 133, not whether the prosecution had the tools to tear
it down. Here the inconsistency of the defense’s position
becomes glaring.

If a rule is dictated by existing precedent of the Supreme
Court, then the available support from opposing sources is not
merely “strong”; it is by definition overpowering. A finding
that the rule is not new under Teague thus establishes the
strength factor of Reed to such a degree that it necessarily
overrides the other two factors. How can anyone say that a
result is dictated by precedents of the Supzeme Court and yet
maintain that counsel lacks the tools to construct that claim?

The argument to that effect really should be written by
Lewis Carroll, but defense counsel turns in a reasonable im-
personation. For evaluating whether a rule is new under
Teague, the argument goes, this Court should interpret its
prior opinions in the way it has in the past, but for the Reed
novelty evaluation the Court should jump through the look-
ing-glass into a reversed world where all the rules are differ-
ent. See Pet. Brief 76-79. Legal practitioners immersed in the
local system, we are told, are somehow excused from reading
and understanding this Court’s precedents. See id., at 79.

\

The argument just does not hold water. Whatever defi-
ciencies American legal education may have in other respects,
it does teach lawyers to do one task very well: to read, under-

20

stand and interpret appellate decisions. We all read the same
cases. Law school has made sure we kisow how. There is no
justification for the double standard defendant proposes.

Penry’s holding that its rule is not “new” for Teague pre-
cludes the contention that the claim is “novel” for Reed.
Conversely, a finding of novelty would require that Penry be
fully or partially overruled and that the rule established in that
case either overturned or at least not applied to any sentence
which became final before June 26, 1989. Either way, defend-
ant cannot claim the benefit of Penry.

B. The Timing Exception.

There is one exception worth noting to the general rule of
preclusion. Novelty for Reed and newness for Teague are not
determined as of the same time. Reed looks at the time of the
procedural default, 468 U. S., at 13, while Teague looks to the
date the conviction became final, 109 S. Ct., at 1075, 103 L.
Ed. 2d, at 356. It is remoiely possible that the law could take
such a radical turn in the interim that a claim which was una-
vailable at the time of he default had become dictated by
precedent by the date of finality.

This possibility need not detain the Court in the present
case, because no such radical turn in the law occurred between
the 1980 trial and the 1984 finality. The plurality opinion in
Lockett v. Ohio, 438 U. S. 586 (1978) provided the tools to
construct the claim in 1980, and Penry’s lawyer used them to
do exactly that. See Penry v. Lynaugh, 109 S. Ct. 2934, 2942,
106 L. Ed. 2d 256, 273 (1989); see also Quinones v. State, 592
S. W. 2d 933, 947 (Tex. Crim. App. 1980), cert. denied, 449

21

U. S. 893."°

Between trial and finality, the cnly important development
was the elevation of the Lockett plurality rule to majority sta-
tus in Eddings v. Oklahoma, 455 U. S. 104 (1982). The distinc-
tion between a plurality and a majority is important for deter-
mining when a rule-is dictated by existing prevedent,'" but it is
not important for deciding whether counsel had the tools to
construct the claim. No competent lawyer would abandon a
claim based on a decision of the Supreme Court merely be-
cause it was a plurality decision. In the death penalty area
especially, most of this Court’s jurisprudence has started out as
plurality decisions. See generally, Scheidegger, Capital Pun-
ishment in 1987: The Puzzle Nears Completion, 15 West. St.
L. Rev. 95, 107-110 (1987). Furthermore, Lockett contains a
solid majority on the need to consider Selvage’s principal miti-
gating factors of accomplice status and lack of intent to kill.
See Lockett, 438 U. S., at 615-616 (Blackmun, J., concurring in
the judgment). .

C. Fundamental v. Nonfundamental Rules.

If a rule must necessarily be new in order to be rovel, two
difficulties anticipated in Reed vanish. The Reed dissent noted
that “novel” claims were unlikely to affect the fundamental
fairness of the trial, 468 U. S., at 22 (Rehnquist, J., dissenting),
but a novel procedural claim can now apply on habeas only if it

10. Selvage’s trial and Penry’s took place in February and March,
respectively, of 1980. J. A. 8; 109 S. Ct., at 2941, 106 L. Ed. 2d, at 271.
Quinones was decided in January but did not become final until denial of
certiorari in October. The issue was very much alive at the time of
Selvage’s trial.

ll. Defe t assumes that Lockett and not Eddings is the cut-off date for
application of the Penry rule. Pet. Brief 76. Amicus disagrees, but this
case does not present that question.

22

qualifies for the second Teague exception; it must involve on
“absolute prerequisite to fundamental fairness” the absence of
which “seriously diminish[es] the likelihood of obtaining an
accurate conviction.” Teague v. Lane, 109 S. Ct. 1060, 1077,
103 L. Ed. 2d 334, 358-359 (1989). Substantive claims that an
act cannot be punished at all qualify for the other exemption.
Id., at 1073, L. Ed. 2d, at 353. Thus, the rovel but peripheral
claims anticipated by the dissent are excluded.

On the other hand, the Reed majority was concerned that
refusal to recognize novelty as cause would result in defense
counsel iaundati;:g the trial court with “any and all remotely
plausible constitutional claims that could, some day, gain rec-
ognition.” Reed, 468 U. S., at 15-16. If a claim of error is so
fundamental as to qualify for the second Teague exception,
competent counsel will surely raise it to preserve it for appeal,
regardless of what rules may apply on habeas. If the claimed
error is not so fundamental, Teague has eliminated any incen-
tive to object merely to preserve the claim for habeas.

The interaction of the procedural default rule and the
Teague nonretroactivity rule thus form another step in the
evolution of habeas corpus. That evolution, in recent years,
has begun to move away from relitigation ad infinitum of the
detailed code of criminal procedure n~w deemed to be incor-
porated in the Due Process Clause, se. ly, Is Innocence
Irrelevant? Collateral Attack on Crimina, :dgments, 38 U.
Chi. L. Rev. 142, 155-156 (1970), and toward a focus on fun-
damental fairness and actual innocence. Teague removed
retroactivity for nonfundamental procedural claims. Stone v.
Powell, 428 U. S. 465 (1976) eliminated most of the exclusion-
ary rule claims. Some Members of the Court would go further.
See Rose v. Lundy, 455 U. S. 509, 547 (1982) (Stevens, J., dis-
senting) (eliminate nonfundamental claims altogether); Duck-

worth v. Eagan, 109 S. Ct. 2875, 2881, 106 L. Ed. 2d 166,179'

(1989) (O’Connor, J., concurring) (eliminate Miranda claims).

23

Murray v. Carrier, 477 U. S. 478. 496 (1986) recognized the
importance of actual innocence.

Recognition of the rule amicus proposes would be a signifi-
cant step along this path. Claims of fundamental unfairness
raising serious doubt of the guilt of the accused could go for-
ward under Reed regardless of procedural default, but periph-
eral claims dreamed up only after a defendant's main conten-
tions have failed would always be barred by either the proce-
dural default rule or the nonretroactivity rule.

D. Procedural Default v. “Merits.”

Because debate on the proce dural default rule usually
invokes calls to forget procedure and go to the “merits,” a few
words on that point may be in order. Although the procedural
default rule is based on the procedure at trial and on appeal, it
does go to the merits of the habeas petition. A habeas pro-
ceeding is not an appeal. United States v. Frady, 456 U.S. 152,
165 (1982). It is a civil lawsuit by a prisoner against officers of
the state, accusing them of violating the Constitution, laws or
treaties of the United States. 28 U. S. C. § 2254(a); Hilton v.
Braunskill, 481 U.S. 770, 776 (1987). The state is no longer
accusing the petitioner; that proceeding is ove; and final. The
petitioner is accusing the state. That is why he has the burden
of procf. See Johnson v. 7#/>st, 304 U. S. 458, 468-469 (1938).

The procedural defaw't rule is not a forfeiture or penalty
imposed on the accusing petitioner; it is an affirmative defense
afforded to the accused state. Virtually all federal habeas
claims today - ~2 ultimately based on the requirement that a
state not “deprive any person of life, liberty, or property, with-
out due process of law.” U.S. Const. amend. XIV, § 1. This
clause, along with all that is deemed incorporated in it, does
not require state trial judges to scrutinize their procedures sua
sponte for every creative chailenge that might some day find

Ze

favor with this Court. The state may properly place the bur-
den of raising most objections on the defendant.

If the defendant has been provided with an effective attor-
ney, if the trial is conducted in accordance with the bedrock
elements of procedural fairness which are central to an accu-
rate determination of guilt,'? and if the trial judge and appel-
late court rule correctly on all objections made by the
defense,'* then the officials of the state have dore their job
correctly. That being the case, the fundamental element of
the habeas petitioner's cause of action is missing. He has re-
ceived the process due. His custody is not in violation of the
Constitution of the United States. The state court's “error” in
not sustaining an objection which the defendant never made
does not alter that conclusion. A ruling on the procedural bar
is thus a ruling on the merits of the habeas petition.

E. Conclusion.

A claim ceases tc Se novel under Reed v. Ross, 468 U.S. 1
(1984), at the very latest, when it ceases to be new under
Teague v. Lane, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). In
most cases it will have ceased to be novel long before. Absent
a radical shift in the law between the date of default and the
date of finality, a holding that a rule is not new under Teague
absolutely precludes any contention that a claim under that
rulc is novel under Reed. A rule which is new under Teague,
and therefore potentially novel under Reed, is retroactive on
habeas corpus only in two rare circumstances nt present in

12 If not, the second Teague exception applies. See 109 S. Ci, at 1076, 103
L. Ed. 2d, at 357. Furthermore, failure to object to a fundamentally
unfaw procedure in any modern inal would be ineffective assisiance.

13. A “correct” ruling is oe made in accordance with the precedents
established by this Court as of the date of finality.

25

this case. Teague, 109 S. Ct., at 1075-1077, 103 L. Ed. 2d, at
356-358.

Penry v. Lynaugh, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989)
therefore cannot be the basis for overturning Selvage’s sen-
tence. He failed to raise the objection at trial, and his claimed
excuse for not objecting is irreconcilable with the holding of
Penry that the rule in that case applies to cases which became
final after Eddings v. Oklahoma, 455 U. S. 104 (1982) but
before Penry.

Vv. “Fundamental miscarriage of justice” must be based
on substance, not procedure.

Where the verdict itself is correct, ie., the defendant is
actually guilty, there is nothing unfair about a procedural bar
blocking a claim which is itself procedural. In Engle v. Isaac,
456 U. S. 107, 135 (1982), this Court expressed its confidence
that “victims of a fundamental miscarriage of justice will meet
the cause-and-prejudice standard.” In Murray v. Carrier, 477
U. S. 478, 496 (1986), the Court recognized that there might
be extraordinary cases “where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent,” and recognized actual innocence as a separate
exception to the procedural bar rule, independent of the cause
and prejudice test.

The difficulty comes in applying this exception to capital
sentencing where guilt is not in issue. In Smith v. Murray, 477
U. S. 527 (1986), the purported error had to do with the de-
fendant’s admission of prior misconduct during a psychiatric
interview arranged by his own attorney. /d., at 529-530.
Acknowledging the difficulty of translating actual innocence
into the penalty phase, the Court conciuded that the admission
of the evidence “did not serve to pervert the jury's delibera-
tions concerning the ultimate question whether in fact peti-

26

tioner constituted a continuing threat to society.” /Jd., at 538
(‘alics in original).

The intended emphasis in this statement appears to be on
the jury’s reaching an acceptable result based on all of the
information available, even though some of that information
may have been illegally obtained. The reference to perverting
the jury’s deliberations, however, might be construed to open
up any claim of procedural error in instructing the jury, select-
ing the jury or arguing to the jury.

The latter interpretation was adopted by the dissent in
Dugger v. Adams, 109 S. Ct. 1211, 103 L. Ed. 2d 435 (1989).
Adams was sentenced to death for molesting and mutdering an
eight-year-old girl. Jd., at 1213, n. 2, L. Ed. 2d, at 441, n. 2.
The trial court instructed the jury that their recommendation
was only advisory. /d., at 1213, L. Ed. 2d, at 440. The dissent
claimed that this “alleged error is thus global in scope: it nec-
essarily pervades the entire sentencing process.” /d., at 1224,
L. Ed. 2d, at 453 (Blackmun, J., dissenting).

The Adams majority, however, rejected this process-based
approach to fundamental miscarriage of justice.

“Demonstrating that an error is by its nature the kind
of error that might have affected the accuracy of a
death sentence is far from demonstrating that an indi-
vidual defendant probably is ‘actually innocent’ of the
sentence he or she received. The approach taken by
the dissent would turn the case in which an error re-
sults in a fundamental miscarriage of justice, the ‘ex-
traordinary case,’ Carnier, supra, at 496, into an all too
ordinary one.” /d., slip op. at 11, n. 6, S. Ct., at 1218,
L. Ed. 2d, at 446.

This passage tells us what fundamental miscarriage of jus-
tice is not, but regrettably does not tell us what it is. The
answer, amicus submits, is to look solely at the substance of

27

the result, disregard all procedure and resolve all discretionary
questions in favor of the verdict. By doing so, we can expose
judicial interference based on disagreement with the sentencer
or the legislature.

For guilt phase error the test of fundamental miscarriage of
justice is actual innocence. Why? Because everyone agrees
that throwing an innocent man in prison is an injustice. There
are no questions of policy here. There is no room for discre-
tion. The purpose of our judicial system is to convict and
punish the guilty. No rational person believes we should con-
vict the innocent.

An injustice is fundamental, justifying an exception to the
procedural bar rule, when there is near unanimity among the
American people that people in the petitioner's situation
should not receive the punishment. On the other hand, a
sentence is not a miscarriage of justice at all, much less a fun-
damental one, if the sentence is a legal one for the crime
committed and if a reasonable sentencer might well impose
that sentence for that crime.

The perimeter of authorized capital semtencing has been
staked out by this Court with great care and with explicit ref-
erence to the beliefs of the American people. See Stanford v.
Kentucky, 109 S. Ct. 2969, 2975-2976, 106 L. Ed. 2d 306, 318-
319 (1989). Death is not a permissible sentence for rape,
Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality), and
presumably not for other nonfatal crimes against individuals.
Crimes against sovereignty, such as treason and espionage,
have yet to be considered. Death is also not permissible in the
case of a nontriggerman without either intent to kill, Enmund
v. Florida, 458 U. S. 782, 797 (1982), or major participation
plus reckless disregard for life, Tison v. Arizona, 481 U. S$. 137,
157-158 (1987). Several groups are immune from capital pun-
ishment: the insane, Ford v. Wainwright, 477 U. S. 399 (1986);

persons under 16, at least without a legislatively-set minimum
age, Thompson v. Oklahoma, 108 S. Ct. 2687, 101 L. Ed. 2d
702 (1988); and probably the severely or profoundly retarded,
see Penry v. Lynaugh, 109 S. Ct. 2934, 2954, 106 L. Ed. 2d 256,

287 (1989).

This extensive set of restrictions, combined with the state
Statutory system, defines which murderers are death-eligible.
If the defendant is in fact a murderer, if his crime does in fact
fit the state’s definition of a capital offense, and if neither he
nor his crime in fact comes within any of the excluded classes
above, then death is an authorized sentence which our society
has determined to be not cruel and not grossly disproportion-
ate. This detailed and exhaustive body of law, built up so paiti-
fully over so many years, has identified and excluded those
cases where a death sentence would be a fundamental miscar-
riage of justice. The remainder of cases are those where rea-
sonable people may differ as to whether death is the appropri-
ate punishment.‘ If a particularly hard-nosed sentencer
could legitimately impose the sentence following an absolutely
perfect trial and sentencing hearing, then that sentence is not
a fundamental miscarriage of jwetice.

The present case illustrates the point. Giving Selvage the
benefit of the doubt, we will assume that his accomplice, Kelly,
was the “triggerman” in both killings. See Pet. Brief 30-31, n.
16. By Selvage’s own admission, then, he robbed the conven-
ience store, and in the course of that robbery Kelly shot and
killed an innocent customer. A mere four days later, with the
actual knowledge that Kelly is a “wild man” who shoots people

14. The overwheiming majority of the American people favor capital pun-
ishmeyit for murder, including an absolute majority in every demographic
group suryeyed. U.S. Bureau of Justice Statistics, Sourcebook of
Criminal Justice Statistics — 1988 at 223. Twenty-nine percent favor it
in all murder cases, and eleven percent oppose it in all cases. /d., at 230.

29

in the course of his robberies, Selvage committed another
robbery with Kelly. Both of them were armed, and Selvage
personally fired his gun at a person. Pet. Brief at 6.

Although Selvage’s accomplice status is relevant, his degree
of participation and resulting culpability are far greater than
Earl Enmund’s, see Enmund v. Florida, 458 U. S. 782, 784-785
(1982) or Sandra Lockett’s, see Lockett v. Ohio, 438 U. S. 586,
590-591 (1978). Selvage’s personal act of shooting at Mr.

Ventura makes his participation and his reckless disregard for-

life greater than that of the Tison brothers in Tison v. Arizona,
481 U.S. 137, 139-141 (1987).

In addition to his accomplice status and his mens rea (ex-
treme recklessness rather than intent), defendant relies heavily
on his psychiatric testimony. Pet. Brief 21-27. If Selvage were
genuinely insane then his execution would be a fundamental
miscarriage of justice. “Mental illness short of that,” as de-
fendant characterizes it, Pet. Brief 108, is a very different
matter. The sentence would still be well within the discretion
of the sentencer, and a great many people would give little or
no mitigating weight to the psychiatric testimony. The trial
judge seems to have been particularly unimpressed with the
psychiatrist. See J. A. 33.

In summary, then, defendant's contention that he does not
deserve his sentence is merely an opinion with which a great
many reasonable people would disagree. Many of them would
consider any lesser sentence to be a miscarriage of justice. In
light of the expansion of the excluded classes in Thompson and
Penry, supra, and the very substantial support for capital pun-
ishment for all murders, see note 14, supra, this will be true
any time the crime and the defendant do not fall into any of

Ps

30

the excluded classes described above.!*

A habeas petitioner is “actually innocent” of a death sen-
tence if, considering all available facts, the sentence was not
legally within the discretion of the sentencer to impose. Sel-
vage’s sentence was well within the sentencer’s discretion, and
therefore it is not a fundamental miscarriage of justice.

Conclusion

The decision of the Court of Appeals for the Fifth Circuit
should be affirmed.

Dated: December, 1989
Respectfully submitted,

KENT S. SCHEIDEGGER

Attomey for Amicus Curiae
Criminal Justice Legal Foundation

15. At one time, counsel for amicus proposed a “no rational person could
differ” standard. Cf. Jackson v. Virginia, 443 U. S. 307, 313 (1979).
After observing the misapplication of the harmless error rule in capital
cases, see, e.g. , Bowen v. Kemp, 832 F. 2d 546, 553 (11th Cir. 1987) (Fay,
J., dissenting), id., at 554 (Edmondson, J., dissenting), it appears that
such an indefinite rule offers too much temptation for those inclined to
second-guess the sentencer.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1481%3A12. Public record. Not legal advice.